CKX16 v Minister for Immigration

[2019] FCCA 1389

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKX16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1389

Catchwords:
MIGRATION – Costs – application for indemnity costs – numerous interlocutory hearings – the applicant successful in the substantive proceeding and one interlocutory hearing – the Minister successful in the other interlocutory hearings – costs ordered on scale.

Legislation:
Migration Act 1958, s.256
Federal Circuit Court Rules 2001, r.21.16, Schedule 1 Part 1, Schedule 1 Part 3 Division 1

Case cited:
Browne v Dunn (1893) 6 R 67

Applicant: CKX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1874 of 2016

Judgment of: Judge Riley

Hearing dates: 12 October 2018 and 5 March 2019

Date of last submission: 5 March 2019

Delivered at: Melbourne

Delivered on: 24 May 2019

REPRESENTATION

Counsel for the applicant: Matthew Albert pro bono on 12 October 2018
Nicholas Wallwork pro bono on 5 March 2019

Solicitors for the applicant: None

Counsel for the first respondent: Andrew Yuile

Counsel for the second respondent: No appearance

Solicitors for the respondents: Australian Government Solicitor

ORDER

The Minister pay the applicant’s costs of the proceeding up to and including the delivery of judgment on 12 October 2018 fixed in the sum of $1,680.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1874 of 2016

CKX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for costs arising in a migration matter.  The applicant was successful on the review by this court. The case involved interlocutory hearings as well as the final hearing.  On each occasion, costs were reserved. 

2. The applicant seeks costs on an indemnity basis for all of the hearings and related matters. Although the applicant lost a significant interlocutory point, which led to a number of interlocutory hearings, the applicant argued that he should have his costs of those hearings as well, on the basis that the costs of those hearings should be costs in the cause.

3. The Minister accepted that the applicant should have his costs of one of the interlocutory hearings and the final hearing but said that there was no justification for indemnity costs, and the applicant should pay the Minister’s costs of the interlocutory hearings in which the applicant did not succeed.

4. As this court has an event based scale, the matter will be approached with that in mind.

Background

1. This proceeding has had a rather tortuous history.  On 8 September 2015, the applicant applied for a protection visa. A delegate of the Minister refused to grant the applicant the protection visa on 19 October 2015. The Administrative Appeals Tribunal subsequently affirmed the delegate’s decision. The applicant sought review in this court. The matter was remitted to the Tribunal by consent, on the basis that the notification times in respect of the Tribunal hearing were inadequate.

2. On 12 July 2016, the Tribunal again affirmed the decision of the delegate not to grant the applicant a protection visa. The applicant applied to this court for an extension of time in which to apply for review of the Tribunal’s decision, as he was about 10 days out of time. The applicant was unrepresented. Another judge of this court dismissed that application on 24 February 2017.

3. The applicant appealed to the Federal Court. The applicant was represented in the appeal by Matthew Albert of Counsel and Nicholas Wallwork of Counsel on a pro bono basis. On 26 March 2018, the Federal Court quashed the decision of the Federal Circuit Court and directed this court, differently constituted, to determine the extension of time application according to law. The Federal Court set aside the costs order that had previously been made by a judge of this court, and ordered the Minister to pay the applicant’s costs of the appeal.

The current proceeding

1. The applicant was represented in the current proceeding by Matthew Albert of Counsel and Nicholas Wallwork of Counsel on a pro bono basis.  On a number of days, only one of them appeared.

2. By orders made by consent in chambers on 29 March 2018, the matter was listed for the hearing of the extension of time application, and, if granted, for final hearing, on 30 April 2018. 

3. The applicant is a citizen of Fiji.  His central claim was that, when he was 16 years old, he witnessed a person being murdered by having his throat cut with a machete, and the murderer said that he would kill the applicant if he returned.  The Tribunal accepted that claim.  However, the Tribunal considered that the applicant did not have a well-founded fear of persecution, or an entitlement to complementary protection, for reasons which it gave.

4. The applicant claimed in this court that, in addition to the claim as recorded by the Tribunal, he also told the Tribunal orally that the murderer was a military or army man and the Tribunal did not consider that aspect of his claim.  The claim that the murderer was a military or army man was said to increase the risk to the applicant, especially given the governance issues in Fiji.

5. In the ordinary course, where there is an allegation that the Tribunal failed to consider a claim made orally at the Tribunal hearing, the court would be given a transcript of the Tribunal hearing, and that would show definitively whether the claim was made.

6. In the present case, the audio recording of the Tribunal hearing had some inaudible passages. That may be because the Tribunal hearing was conducted by video as the applicant was on Christmas Island and the Tribunal member was in Melbourne.  The Minister arranged for a sound engineer to enhance the audio recording. Even the enhanced recording had inaudible passages. Some of the inaudible passages were at points in the Tribunal hearing where it was possible, contextually, that the applicant said that the murderer was a military or army man.

7. In these circumstances, the applicant wished to give evidence about what he said to the Tribunal.  He foreshadowed that he would file a witness statement, which was eventually filed on 26 April 2018. He had practical difficulty swearing an affidavit, as he was in detention on Christmas Island at that time.  In the witness statement, the applicant said that he told the Tribunal that the murderer was a military or army man. He said that he would give that evidence on oath at the hearing before this court.

8. The Minister wished to cross-examine the applicant.  As the applicant was detained on Christmas Island, and the hearing was scheduled to occur in Melbourne, the Minister applied to the court for orders allowing the applicant to be cross-examined by video link.  The applicant opposed the cross examination being conducted in that manner.

a.          the hearing on 18 April 2018

1. The Minister’s interlocutory application to cross-examine the applicant by video link was heard on 18 April 2019. The Minister’s application was refused and the costs of the application were reserved.  The Minister was required to ensure that the applicant attended court in person at the final hearing scheduled on 30 April 2018. The Minister transferred the applicant to the Maribyrnong Immigration Detention Centre (“Maribyrnong”) for that purpose.

b.        the hearing on 30 April 2018

1. The final hearing was scheduled on 30 April 2018. On that day, to his credit, the Minister, after a brief discussion, conceded that it was appropriate in all the circumstances of this case to grant an extension of time for the applicant to file his application to this court. Orders were made by consent to that effect. That meant that the hearing on 30 April 2018 could have proceeded as a final hearing only.

2. However, the applicant objected to the affidavit affirmed by Elena Arduca on 27 April 2018 being admitted into evidence. That affidavit exhibited what she said was an enhanced audio recording of the Tribunal hearing made by a sound engineer and a transcript of the enhanced audio recording. The applicant’s objection was largely on the ground of hearsay.  Ms Arduca was not present at the Tribunal hearing and did not herself enhance the audio recording.

3. The hearing on 30 April 2018 took all day.  It dealt primarily with the applicant’s objection to Ms Arduca’s affidavit.  After some discussion, the court ordered by consent that Ms Arduca’s affidavit not be admitted into evidence. The matter was adjourned to 23 May 2018 for final hearing, and the costs of 30 April 2018 were reserved.

c.             the hearing on 23 May 2018

1. The final hearing was scheduled for Wednesday 23 May 2018. At about 3pm on Friday 18 May 2018, the Minister served three affidavits on the applicant’s pro bono counsel, being:

   a)

   an affidavit affirmed by Georgina Hillier, a Tribunal officer, on

   
   

   16 May 2018, in which she said that she exhibited the [original] audio recording on a USB of the applicant’s Tribunal hearing;

   b)an affidavit affirmed by Joseph Carra, a sound engineer, on 17 May 2018, in which he said that he had enhanced the audio recording and sent it to Antonietta Guerra; and

   c)an affidavit affirmed by Antonietta Guerra, a legal assistant, on 18 May 2018, in which she said that she had received an [enhanced] audio recording from Mr Carra and she had arranged to get it transcribed; she exhibited the transcript to her affidavit.

2. At the hearing on Wednesday 23 May 2018, the applicant objected to the three affidavits going into evidence largely on the grounds of hearsay.

3. In addition, Mr Albert submitted that the applicant was prejudiced because the Serco guards at Maribyrnong had not permitted the applicant to listen to the USB containing the audio recording of the Tribunal hearing that had been served the previous Friday, so it was not possible for him to confirm that the audio recording and transcript were accurate.  

4. The hearing on 23 May 2018 took all morning, and achieved very little.  The parties accepted that the hearing could not proceed until the applicant had listened to the audio recording on the USB.  Mr Yuile, for the Minister, said that he was instructed that the recording exhibited to Ms Hillier’s affidavit was the original recording.  However, the applicant was unable to accept that because he had not listened to it. In any event, the enhanced recording could have been expected to be more useful. 

5. The court ordered that:

   a)the Minister within seven days give the applicant compact discs containing the audio recording and the enhanced audio recording of the Tribunal hearing;

   b)the Minister ensure that the applicant within 14 days have access to appropriate listening facilities;

   c)the Minister file and serve any further affidavit by 4 June 2018;

   d)the parties’ costs be reserved; and

   e)the final hearing be adjourned to 18 June 2018.

d.        the hearing on 18 June 2018

1. The Minister filed and served three further affidavits on 4 June 2018.  They were:

   a)the affidavit affirmed by Joseph Carra on 4 June 2018, which exhibited a USB containing a copy of the enhanced audio recording;

   b)the affidavit affirmed by Chris Mai on 1 June 2018, in which he said he had burned onto CDs the audio recording of the applicant’s Tribunal hearing and the enhanced audio recording;

   c)the affidavit affirmed by Antonietta Guerra on 30 May 2018, in which she said that, on 24 May 2018, she had sent to the applicant a CD with the enhanced audio recording on it and that, on 25 May 2018, she was told that the applicant had been given private facilities to listen to it.

2. On 18 June 2018, the applicant also objected to the admission into evidence of the three new affidavits and, more particularly, the audio recordings and the transcript.  The hearing on 18 June 2018 only dealt with the applicant’s objections.  The court reserved its decision, and otherwise adjourned the final hearing, as it was necessary for the objections to be determined before witnesses were cross-examined.

e.        the hearing on 10 July 2018

1. Judgment on the applicant’s objections was handed down on 10 July 2018. The applicant lost. The court ordered that the USB, which contained an enhanced recording of the applicant’s hearing before the Tribunal, and which was exhibit JC-1 to the affidavit affirmed by Joseph Carra on 4 June 2018, and the transcript of the enhanced recording, which was exhibit AG-5 to the affidavit affirmed by Antonietta Guerra on 18 May 2018, be admitted into evidence. The matter was adjourned to 20 July 2018 for final hearing.

f.         the hearing on 20 July 2018

1. The applicant gave to the Minister in the morning before the hearing commenced on 20 July 2018 an unsworn affidavit dated 20 July 2018.  The unsworn affidavit went to the question of the costs of 23 May 2018.  It became exhibit 2 and said: 

   1.I am the Applicant in this proceeding. I am now and was at all times relevant to this affidavit detained at the Maribyrnong Immigration Detention Centre (MIDC).

   2.On 20 May 2018, my barrister emailed me to let me know that an affidavit annexing a recording purporting to be of my Tribunal hearing had been sent to him on behalf of the First Respondent and that it should also be available to me. He asked that I listen to it so I could give him instructions concerning it.

   3.On 21 May 2018 an officer at MIDC told me that a USB had been sent to me.

   4.I asked him if I could have it so that I could listen to it. I told him that it was for my court case and that I needed to listen to it before the hearing on the morning of 23 May 2018.

   5.The officer said that he would not approve me to listen to it. He refused me access to the facilities to do so. He did not give me a reason.

   6.I did not have any other way to access listening facilities to listen to the recording.

   7.As a result, I could not give my barrister instructions on the content of the recording before the hearing. I emailed him to let him know of this on 22 May 2018, the afternoon before the hearing.

   8.I was available and willing to give this evidence orally at the hearing on 23 May 2018, which I attended in person.

   9.In preparation for this affidavit, I asked officers at the MIDC to tell me the name or identification number of the officer who was working at my compound on the day in question so I could identify him in this affidavit. They have refused to give me those details.

2. At the hearing on 20 July 2018, the applicant adopted his unsworn affidavit dated 20 July 2018. The Minister cross-examined the applicant about whether he had told the Tribunal that the murderer was a military or army man and about the unsworn affidavit dated 20 July 2018. In relation to the unsworn affidavit dated 20 July 2018, the applicant said in cross-examination that:

   a)prior to 20 May 2018, if he wanted to listen to a recording, he asked the compound officer, who asked the property manager for approval and a time would be arranged at night;

   b)on these previous occasions, he listened to recordings in a private room;

   c)audio recordings are not allowed in the zones, which are the detainee’s living areas; and

   d)he asked an officer on 21 May 2018 to be allowed to listen to the USB containing the audio recording of the Tribunal hearing and the officer refused.

3. Also on 20 July 2018, the parties made their submissions on the substantive application.  The decision on that aspect of the matter was reserved.

4. As the applicant’s unsworn affidavit was only given to the Minister on the morning of 20 July 2018, the Minister did not have an opportunity to obtain instructions from the relevant people at Maribyrnong. The Minister was given 14 days to file and serve any affidavits in reply to the applicant’s unsworn affidavit dated 20 July 2018.  This evidence related to the costs of the hearing on 23 May 2018.

g.        the hearing on 12 October 2018

1. Judgment in the substantive matter was handed down on 12 October 2018.  The applicant was successful.  That is, the court set aside the Tribunal’s decision and remitted the matter to the Tribunal to be determined according to law.

2. The parties were also heard on the question of costs on 12 October 2018.  They sought to adduce evidence in relation to the costs of the hearing on 23 May 2018 and whether the costs order should be beyond scale costs. In particular, there was a question whether Serco guards had prevented the applicant from listening to the USB containing the audio recording of the Tribunal hearing between the date when the USB was served on or about 18 May 2018 and the hearing on 23 May 2018. 

3. The Minister relied on the affidavit affirmed by Janice Christina Beattie on 3 August 2018 and the affidavit affirmed by Clinton Matthew Dodd on 3 August 2018.

4. The applicant did not seek to cross-examine Ms Beattie on her affidavit affirmed on 3 August 2018. She said that:

   a)she is the Centre Manager at Maribyrnong;

   b)she interviewed all the people who were rostered on in the applicant’s zone on 21 May 2018;

   c)none of them could recall having a discussion with the applicant about the use of a USB or a computer;

   d)the centre maintains records of complaints; and

   e)there was no record of a complaint from the applicant about inability to access a USB or computer.

5. The applicant objected to Ms Beattie’s evidence about what other people could recall and the complaint records. I accepted that this evidence should be given little weight. I otherwise accept Ms Beattie’s evidence.

6. The applicant did cross-examine Mr Dodd.  He said in his affidavit that:

   a)he is an inspector at Maribyrnong;

   b)there are computers available on a share basis that can be used by detainees at any time;

   c)there are computers available for the use of detainees in private interview rooms on request;

   d)access to the private interview rooms for computer use is usually provided outside business hours;

   e)computer facilities and private interview rooms were available to detainees on 21 May 2018; and

   f)the property transaction log showed that the applicant received a USB on 7 May 2018 and a CD on 24 May 2018.

7. Mr Dodd exhibited the property transaction logs for 7 and 24 May 2018 to his affidavit.

8. The applicant also filed on 12 October 2018 a statement dated 10 October 2018, which became exhibit 3. He said in that statement that detainees were not permitted to use non-Serco USBs, such as the one he was sent on 21 May 2018, and there were no computers for detainees to use in any of the interview rooms.

9. Mr Dodd confirmed in oral evidence in chief that detainees were not permitted to use non-Serco issued USBs and that there were no computers for detainees to use in the interview rooms.  However, he said that a laptop could be made available for detainees to use in the interview rooms.  He said the process was for detainees to put in a request, which under Serco’s contract had to be actioned within five days, but which were often actioned more quickly.     

10. In cross-examination, Mr Dodd said that he did not know which guard was on duty in the applicant’s zone on 21 May 2018. He said that he did not have access to the rosters, because they were Serco’s rosters and he works for Australian Border Force. 

11. In any event, Mr Dodd said in evidence that either the Minister was lying when he said that a USB was sent to the applicant on about 18 May 2018 or the Serco property logs were incomplete. In my view, it is probable that Serco’s property transaction logs, at least as they were provided to the court, are incomplete.

12. The applicant said in oral evidence in chief that he had never listened to a non-Serco USB while he was in detention. He said the process for listening to Serco USBs while in detention was to verbally ask a guard, who would check with a property manager and, if he was allowed, he would then be permitted to listen to the USB between 8.30pm and midnight.  The applicant said that he asked a guard if he could listen to the non-Serco USB on 21 May 2018.  The guard said he would get back to him.  The guard did get back to him, and said, Sorry mate.  We can’t help you. Not today.

1. In cross-examination, the applicant said that he knew that conversation occurred on 21 May 2018 because that was the day he checked his email, and his lawyer asked him to listen to the USB before going to court the next day.  (The hearing was actually two days later, on 23 May 2018.)   The applicant said that his affidavit in which he said that he asked on 21 May 2018 to listen to the USB may have been wrong, and he may have asked between 20 and 23 May 2018.  The applicant also said later that the guard may have said Not tonight rather than Not today.

2. The applicant confirmed in cross-examination that the guard he spoke to was a man.  He said he was an old person, in the sense of probably being over 40 years old.  He thought there were two guards who might have been the one he asked. One was called Mel and the other was called Rudy. The applicant said that he thought it was Mel, and Ms Beattie, in an interview, told him it was Mel. However, the applicant said that Mel later told him that it was not him and that it was Rudy. The applicant also agreed in cross-examination that the guard he asked to use the USB was someone who worked regularly in his area of the detention centre and he knew that person’s face.

3. In re-examination, the applicant said that, after he filed his statement dated 20 July 2018, he was called into Ms Beattie’s office.  He said that she told him that it was Mel who he had spoken to that night.  However, the applicant said that, afterwards, Mel told him it was not him, it was Rudy. The applicant described Mel as being old, having an Irish accent, wearing glasses, being shorter than the applicant, having pale skin, having not much hair, and his hair being grey or white. The applicant described Rudy as being more built than Mal, being taller than the applicant, being Caucasian, being Australian, being 40 or 50 years old, having black hair, and having hair everywhere.

4. After hearing that evidence, the parties decided to attempt to resolve the costs issue by consent, and if not, file written submissions. Orders were made to that effect. The applicant filed written submissions on costs on 5 November 2018 and the Minister filed written submissions on costs on 12 November 2018. The matter was not given a further hearing date. 

h.        the hearing on 15 November 2018

1. The parties were not able to resolve the costs issue by consent. The Minister attempted to file more affidavits. The applicant opposed that.  The matter was listed for hearing on 15 November 2018 to determine whether those affidavits should be admitted into evidence.   The Minister was given leave to file and serve:

   a)the affidavit affirmed by Janice Christina Beattie on 9 November 2018;

   b)the affidavit affirmed by Melvyn Hebden on 12 November 2018;

   c)the affidavit affirmed by Rudy Carle on 12 November 2018; and

   d)the affidavit affirmed by Elena Iolanda Arduca on 12 November 2018.

2. Ms Beattie said in her affidavit that she was asked by Inspector Dodd to find out who the applicant had spoken to about listening to the USB.  She said that she conducted an interview with the applicant on 25 July 2018. He said he could not remember who the officer was but the conversation was on 21 May 2018. Ms Beattie said that she suggested a few names to the applicant of people who regularly worked in his area, including Melvyn Hebden. Ms Beattie said that the applicant said that he still could not remember. Ms Beattie strongly denied that she tried to coerce the applicant into saying it was any particular person. Ms Beattie said that she reviewed the CCTV footage of 21 May 2018. It showed that Officer Rudy Carle went into the applicant’s room on 21 May 2018 and then escorted him to the property office. 

3. Mr Hebden said in his affidavit that he attended an interview between Ms Beattie and the applicant on 25 July 2018.  He said that the applicant said in the interview that:

   a)he could not remember which officer he asked if he could listen to the USB;

   b)he was sure he made the request on 21 May 2018;

   c)he could not remember if the officer was male or female;

   d)he could not remember during which shift he made the request; and

   e)when Ms Beattie suggested various names, the applicant still could not remember which officer he had asked.

4. Mr Hebden said that, the following day, the applicant apologised to him for getting him into trouble. Mr Hebden said he replied that he was not in trouble, and he had not worked on 21 May 2018 but Mr Carle had.  Mr Hebden said that the applicant said that he might have got the date wrong, and he might have made the request any time between 20 and 23 May 2018.

5. Mr Carle said in his affidavit that he worked on 21 May 2018.  He said that the applicant asked him to take him to the property office, where he asked for a jumper, which he was given.  Mr Carle said that he did not recall the applicant asking him to be allowed to listen to a USB.  If he had, Mr Carle said that he would have asked the applicant to complete a property request form.  It was common ground that the applicant did not complete any such form.

6. The matter was listed for further hearing on the question of costs on 5 March 2019. 

1. the hearing on 5 March 2019

1. Mr Albert was unable to appear for the applicant on 5 March 2019 for undisclosed ethical reasons. Mr Wallwork appeared for the applicant.

2. Prior to the hearing on 5 March 2019, on 6 February 2019, the applicant made a further statement. In that statement, he said that he thought Mr Hebden was at the interview on 25 July 2018 because Ms Beattie was in the process of disciplining him. He said that, because he did not want to get Mr Hebden into trouble, he gave non-committal answers. He said that the occasion on 21 May 2018 when Mr Carle escorted him to the property office to get a jumper was not the occasion when he asked for access to the USB.

3. The applicant was cross-examined again on 5 March 2019. He said that Ms Beattie was lying in her affidavit when she said she was just suggesting possible names of people who the applicant might have asked if he could listen to the USB. He said that she said it was definitely Mel, being Mr Hebden. He said that he knew it was Mel or Rudy, being Mr Hebden or Mr Carle.

4. Ms Beattie was cross-examined on 5 March 2019. She confirmed that an email that she exhibited to her affidavit affirmed on 9 November 2018 was missing its second and last page. She produced the last page, which became exhibit 10.  The last page said that she had been unable to obtain a report from the officer who the applicant asked for permission to listen to the USB because the applicant did not recall who he spoke to. The last page also said that she had not received a complaint from the applicant about being denied access to a USB.  Otherwise, Ms Beattie was asked about her investigation into whether the applicant had asked for permission to listen to the USB.

5. Mr Hebden was also cross-examined on 5 March 2019. He conceded that he had spoken to Ms Beattie just outside the court room after she had been cross-examined. She told him that she had been given a good grilling about her investigation, she was questioned about an email and she was not questioned about the meeting between herself, Mr Hebden and the applicant on 25 July 2018. It was put to Mr Hebden that if he could not remember Ms Beattie’s precise words from 15 minutes earlier, he could not accurately remember what was said at the meeting on 25 July 2018.  He said that he remembered that Ms Beattie suggested names at the meeting on 25 July 2018 and did not say definitively who the officer was that the applicant asked for permission to listen to the USB.  

6. Mr Carle was also cross-examined on 5 March 2019.  He said that he overheard Ms Beattie and Mr Hebden speaking after she gave evidence and before Mr Hebden did, but he did not really listen and thought it was just general work conversation. Mr Carle confirmed in cross-examination that the property log in respect of the applicant was incomplete because it did not include the request on 21 May 2018 when the applicant asked to be given a jumper from the property office. 

Findings

1. Ms Beattie and Mr Hebden obviously did the wrong thing when they discussed Ms Beattie’s evidence outside court on 5 March 2019.  However, I am not satisfied that Mr Hebden’s evidence, or Mr Carle’s evidence, was sullied by that discussion.

2. Ms Beattie, or her solicitors, also did the wrong thing when they failed to include the last page of the email that she exhibited to her affidavit affirmed on 9 November 2018.  However, again, I am not satisfied that the omission diminished the credibility of her evidence in any significant way.

3. I also accept that the property log maintained by Serco may have been incomplete. However, again, I do not accept that any such omission materially affected the evidence.

4. Having seen all of the witnesses in the witness box, I am not persuaded that the applicant did ask any Serco officer for permission to listen to the USB on or around 21 May 2018. Although I previously found the applicant to be a credible witness, on the USB point, his evidence was vague to the point of implausibility, and changed over time.

5. It beggars belief that the applicant could not have identified the relevant officer at the outset, given that he saw the relevant officers every day and knew them by name. His claim that, at the interview on 25 July 2018, he was trying to protect Mr Hebden from getting into trouble does not explain why he did not identify the relevant officer before the interview was held on 25 July 2018.

6. The applicant was initially adamant that he requested access to the USB on 21 May 2018, but later said it may have been on another day, when confronted with a video recording of him going to the property office with Mr Carle.

7. The applicant eventually told the court in cross-examination that the person he asked was Mr Hebden or Mr Carle, after saying for months that he could not identify the person at all, and causing a number of hearings largely for the purpose of clarifying that issue.

8. In the alternative to the finding that the applicant did not request access to the USB at some time around 21 May 2018, I am not persuaded that the Minister, on request, failed to provide the applicant with all reasonable facilities to take legal proceedings by failing to allow him to listen to the USB. Without knowing who the applicant asked, and when, I am unable to form the view that the applicant was denied access to reasonable facilities to take legal proceedings.

9. If the applicant asked to listen to the USB at 10pm on 22 May 2018, it would not have been unreasonable for the Minister to not action that request that same evening. The evidence as it stands does not permit a finding that the applicant made the request any earlier than that. The applicant was asked what time of day he made the request, but could not even nominate during which shift, morning, evening or night, he made the request.

10. I do not accept the applicant’s claim that Ms Beattie improperly tried to coach a witness, namely, him. Usually, the charge that a witness has been coached is levelled against a person for coaching one of their own witnesses.  It is strange that the applicant would accuse a person in the respondent’s camp of trying to coach him. 

11. Perhaps the charge in the present case is better interpreted as a charge that Ms Beattie tried to improperly pressure the applicant to say that the person he asked for permission to listen to the USB was Mr Hebden.   However, even that, in my view, did not occur.  I accept Ms Beattie’s and Mr Hebden’s evidence that Ms Beattie simply suggested various names, in an effort to jog the applicant’s memory.

The application for indemnity costs

1. The applicant sought indemnity costs on the bases spelt out in his written submissions filed on 18 June 2018 and 5 November 2018, namely, the Minister’s conduct of the proceeding, particularly in relation to:

   a)the waste of time in relation to the audio recordings and transcript;

   b)the Serco guards’ failure to give the applicant reasonable facilities to listen to the USB;

   c)a Serco guard improperly attempting to coach a witness, namely, the applicant; and

   d)the Minister failing to comply with his model litigant obligations by:

   i)applying for the applicant to give evidence by video link, in circumstances where the Minister had chosen to detain the applicant on Christmas Island;

   ii)causing multiple hearings on the admissibility of the audio recording and transcript because their evidence was inadmissible;

   iii)causing the hearing on 23 May 2018 to be adjourned because the Minister did not give the applicant access to facilities to listen to the USB; and

   iv)failing to concede the judicial review application where the Minister lost on two grounds and has not sought to appeal.

2. It was bizarre that the applicant objected to the audio recording and the transcript of the Tribunal hearing going into evidence. The applicant clearly did not make a written claim that the murderer was a military or army man. The onus was on the applicant to prove that he verbally told the Tribunal that the murderer was a military or army man. The audio recording of the Tribunal hearing and a transcript of that recording were obviously the best evidence of what the applicant told the Tribunal. That is so, even though some passages in the audio recording were inaudible, and the evidence of the audio recording needed to be supplemented with oral evidence.

3. The Minister consented to an order that the affidavit affirmed by Ms Arduca on 27 April 2018 not be admitted into evidence, and in a sense, the applicant succeeded on 30 April 2018. However, the applicant’s arguments were highly technical, and, quite frankly, wasteful of time and resources. Usually, transcripts of Tribunal hearings go into evidence without any issue. Usually, counsel acting with good will and professionalism are able to present an agreed transcript to the court, after resolving between themselves any discrepancies that are identified along the way.   

4. Ultimately, after two more interlocutory hearings, and significantly more evidence, the enhanced audio recording and transcript did go into evidence.  There was no dispute about their accuracy, and they actually supported the applicant’s case, notwithstanding his objection.  On a technical level, there may have been deficiencies in Ms Arduca’s affidavit, but, in the normal course, objection would not have been taken.

5. The waste of time in relation to the audio recordings was largely the applicant’s fault.  He should not have objected in the first place.  But, as the applicant did object, it was necessary for the Minister to put in the relevant evidence in an admissible form.  It took the Minister a number of attempts to do that.  However, because the applicant should not have objected, and should have come to a sensible agreed position on the audio recordings and transcript, I do not consider that the Minister’s wastage of time should be given weight in the application for indemnity costs.

6. The applicant’s argument about the Serco guards’ failure to give the applicant reasonable facilities to listen to the USB was based on s.256 of the Migration Act 1958. That section provided that:

   Person in immigration detention may have access to certain advice, facilities etc.

   Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

7. However, as found above, I am not satisfied that the applicant asked a Serco guard to be allowed to listen to the USB on or about 21 May 2018.  In any event, as eventually became apparent, after hours of interlocutory hearings, the USB the applicant received on or about 21 May 2018 contained the original recording of the applicant’s Tribunal hearing. It was basically irrelevant. The enhanced recording was the one that eventually went into evidence. The applicant did not complain that he had been unable to listen to that recording. This issue should not be given any weight in the claim for indemnity costs.

8. As found above, I am not satisfied that Ms Beattie improperly attempted to coach the applicant, or pressure him into saying that the relevant guard was a particular person. This issue should not be given any weight in the claim for indemnity costs.

9. The Minister’s application to be able to cross-examine the applicant by video link was inherently likely to fail. It is generally accepted that, where there are questions of a witness’s credibility, evidence given by video link or telephone is unsatisfactory. The Minister said that the purpose of the cross-examination was merely to put various propositions to the applicant, to satisfy the rule in Browne v Dunn[1]. However, from the applicant’s point of view, the purpose of the cross-examination was for him to appear as a credible and compelling witness. From the court’s point of view, the purpose of the cross-examination was to enable an assessment of the applicant’s credibility on a critical point in his case.  That could only be done properly by the applicant giving evidence in person.

   [1](1893) 6 R 67

10. The applicant argued that indemnity costs were appropriate because the application for the applicant to be cross-examined by video link was occasioned by the Minister’s decision to detain the applicant on Christmas Island when he had a judicial review application on foot in Melbourne. I do not consider that is a sufficient reason to make an indemnity costs order.  It was not inherently improper to detain the applicant on Christmas Island when he had a judicial review pending in Melbourne, provided that he was reasonably able to instruct his legal representatives and participate in the hearing in Melbourne.

11. It does not seem to me that the Minister’s application for the applicant to give evidence by video link was a breach of the model litigant obligations. This is not an issue that should be given any weight in the claim for indemnity costs.

12. It is true that the Minister caused a number of interlocutory hearings by not putting forward evidence in an admissible form about the provenance of the enhanced audio recording. However, as mentioned above, the point raised by the applicant was highly technical and ultimately unsuccessful. It was a matter that should have been worked out quickly and efficiently by counsel acting with good will and professionalism. The applicant did not dispute that the enhanced recording was the recording of his Tribunal hearing and expressly disavowed any suggestion that the enhanced recording was in any way tampered with. The numerous interlocutory hearings on the admissibility of the enhanced tape recording were ultimately caused by the applicant’s misguided objection. This is not a matter that constitutes a breach of the model litigant guidelines or that should be given any weight in the claim for indemnity costs.

13. As mentioned above, I am not persuaded that the applicant asked to be permitted to listen to the USB on or around 21 May 2018, so there was no breach of the model litigant guidelines in this regard.

14. The Minister did not concede the substantive application.  However, the matter was decided on the evidence, after cross-examination, and on the submissions, after lengthy argument. The Minister’s case was not doomed to fail. It simply did not find favour with the court. The Minister’s failure to concede the case was not a breach of the model litigant guidelines and this issue should not be given weight in the application for indemnity costs.   

1. As none of the matters raised by the applicant justify an indemnity costs order, it is now necessary to consider whether costs should be costs in the cause.

Costs in the cause

1. The applicant argued that he should have his costs, at least on scale, of all of the interlocutory hearings, even though he lost the principal interlocutory point regarding the admissibility of the enhanced audio recording and the transcript, and the substantial interlocutory point regarding the allegation that the applicant had been denied a reasonable opportunity to listen to a USB on or about 21 May 2018. That argument was put on the basis that the costs of all the interlocutory hearings should be costs in the cause.

2. I do not consider costs in the cause are appropriate in this case. The points the applicant lost were discrete issues. I consider that it is more appropriate to order costs against the applicant on those issues. 

Costs on scale

1. In my view, in accordance with the usual approach, it is appropriate in this case to order costs on scale.

a.          the hearing on 18 April 2018

1. The applicant sought the costs of the interlocutory hearing on 18 April 2018 regarding the applicant being cross-examined via video link. The Minister accepted that it would be appropriate to order him to pay the applicant’s costs on scale for that interlocutory hearing.

2. Neither party provided any figures to the court for the appropriate quantum of costs on scale. This court has an event based scale. The scale for migration proceedings is set out in Part 3 of Schedule 1 of the Federal Circuit Court Rules 2001 (“the Rules”). However, that scale does not include an item for a discrete interlocutory hearing. In that circumstance, it is appropriate to apply the scale for general federal law matters, which is contained in Part 1 of Schedule 1 of the Rules. Item 3 of that scale, which applies to an interim hearing as a discrete event, allows for solicitor’s costs of $1,867 plus the appropriate daily hearing fee in item 13.

3. In the present case, there was no solicitor. However, counsel evidently assisted the applicant in the preparation of his witness statement. I consider it to be appropriate to allow the sum of $1,867 for counsel’s assistance with the witness statement and related matters. 

4. In addition, rule 21.16 of the Rules provides that the amount payable for counsel’s appearance is the appropriate daily hearing fee plus a 50% advocacy loading. Mr Albert appeared alone on that day. The appropriate daily hearing fee depends on the duration of the hearing. The interlocutory hearing on 18 April 2018 was more than a short mention but it did not take a half day. Nevertheless, it could properly be characterised as a half day hearing. Therefore, the scale amount for counsel’s fees for the appearance was $1,120 plus 50% of that, being $560, making a total fee for counsel of $1,680.

5. That figure, added to the $1,867, makes a total for the interlocutory hearing on 18 April 2018 of $3,547. The Minister will be required to pay the applicant that amount.

b.         the hearing on 30 April 2018

1. The hearing on 30 April 2018 should have been the final hearing.  However, the final hearing could not proceed because the applicant made an ultimately unsuccessful objection to the reception into evidence of the enhanced audio recording of the applicant’s Tribunal hearing and the transcript of that hearing.  Late in the day on 30 April 2018, the Minister consented to the relevant affidavit being excluded from evidence.  However, as discussed, the applicant’s objection to the enhanced audio recording and transcript was ultimately unsuccessful. In all the circumstances of this case, I consider that each party should bear their own costs of the hearing on 30 April 2018.

c.             the hearing on 23 May 2018

1. The hearing on 23 May 2018 was meant to be the final hearing.  However, the Minister filed some affidavits fairly late, and the applicant claimed that he was not permitted by an unidentified Serco guard to listen to the USB of the original audio recording that was exhibited to one of the affidavits. This meant that the matter could not proceed as the final hearing. However, as found above, the applicant did not ask a Serco guard for permission to listen to the USB. In any event, the applicant eventually lost the whole argument about the admissibility of the enhanced audio recording and the transcript. 

2. In these circumstances, I consider that the applicant should pay the Minister’s costs on scale of the hearing on 23 May 2018. The hearing on 23 May 2018 took half a day. The amount for the solicitor’s preparation, as described above, is $1,867. In addition, a solicitor instructed in court on that day, and on all the other hearing days, so a daily hearing fee is payable for her, being, for a half day hearing, $1,120. Counsel’s fees are $1,680.  That makes a total of $4,667. The applicant will be ordered to pay that amount to the Minister.

d.        the hearing on 18 June 2018

1. The hearing on 18 June 2018 was another hearing on the admissibility of the enhanced audio recording and transcript. It took half a day. The applicant lost that point. He should therefore pay the Minister’s costs of that day, fixed in the sum of $4,667.

e.        the hearing on 10 July 2018

1. Judgment on the interlocutory issue of the admissibility of the enhanced tape recording and transcript was handed down on 10 July 2018. I consider that the costs of taking judgment should be regarded as included in the costs of conducting the hearings on that issue.

f.       the hearing on 20 July 2018

1. The final hearing proceeded on 20 July 2018. The applicant succeeded at the final hearing. Therefore, the Minister should pay the applicant’s costs on scale of that day. The final hearing took half a day, as is usual in migration matters. Mr Albert and Mr Wallwork appeared together at the final hearing. It was not explained to the court why two counsel were necessary. I do not see any reason to depart from the usual scale amount of $7,467. That figure includes the costs of taking judgment on the substantive matter.

g.        the hearing on 12 October 2018

1. Judgment in the substantive matter was handed down on 12 October 2018. As discussed, the applicant’s costs of taking judgment are included in the scale amount of $7,467 for the substantive matter.

Conclusion

1. The parties agreed that the costs of the costs hearings on 12 October 2018, 15 November 2018 and 5 March 2019 should be dealt with separately. Consequently, I say no more about those hearings for now. 

2. Consequently, the Minister is required to pay the applicant $3,547 plus $7,467, making a total of $11,014. The applicant is required to pay the Minister two times $4,667, making a total of $9,334. The difference is $1,680. There will be an order that the Minister pay the applicant that amount.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  24 May 2019