FEDERAL COURT OF AUSTRALIA
Gogo v Attorney-General (Cth) [2022] FCA 70
File numbers: ACD 75 of 2019
ACD 76 of 2019
ACD 77 of 2019
ACD 78 of 2019
ACD 79 of 2019
ACD 80 of 2019
ACD 86 of 2019
ACD 87 of 2019Judgment of: WIGNEY J Date of judgment: 9 February 2022 Catchwords: COSTS – interlocutory application seeking costs in relation to judicial review applications – where judicial review applications became otiose and were discontinued and not determined on the merits – relevant principles regarding the Court’s discretion to award costs in circumstances where there is no hearing on the merits – whether it was possible, without addressing the merits or resolving disputed factual issues, to determine whether the applicants would almost certainly have succeeded had the applications gone to trial – whether it was possible, without addressing the merits or resolving disputed factual issues, to determine whether the difference in the reasonableness of the actions of the parties in respect of the litigation warranted costs in favour of the applicants – where Court held it was not possible to conclude that applicants would have succeeded in the judicial review applications without considering the merits of the case – where Court held it was not possible to conclude that there was a marked difference in the reasonableness of the actions of the parties to warrant the award of costs to the applicants – no order as to costs Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 7(1)
Crimes Act 1914 (Cth), ss 19AP, 19AL
Judiciary Act 1903 (Cth), s 68(2)
Migration Act 1958 (Cth), ss 232A, 232A(1)
Federal Court of Australia Act 1976 (Cth), s 43
Sentencing Act 1995 (WA), ss 140, 140(1)(a)
Cases cited: Attorney-General (Cth) v Ogawa (2020) 281 FCR 1; [2020] FCAFC 180
Frigger v Trenfield (No 7) [2020] FCA 1740
Holzinger v Attorney-General (Qld) & Anor (2020) 5 QR 314; [2020] QCA 165
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Jasmin v The Queen (2017) 51 WAR 505; [2017] WASCA 122
Latoudis v Casey (1990) 170 CLR 534
Murray v Figge (1974) 4 ALR 612
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Yasmin v Attorney-General (Cth) (2015) 236 FCR 169; [2015] FCAFC 145
Division: General Division Registry: Australian Capital Territory National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 79 Date of last submissions: 17 August 2021 Date of hearing: 18 November 2020 and 30 August 2021 Counsel for the Applicants: Mr P Tierney Solicitor for the Applicants: Ken Cush & Associates Counsel for the Respondent: Mr G del Villar QC with Ms J Caldwell Solicitor for the Respondent: Australian Government Solicitor ORDERS
ACD 75 of 2019
ACD 76 of 2019
ACD 77 of 2019
ACD 78 of 2019
ACD 79 of 2019
ACD 80 of 2019
ACD 86 of 2019
ACD 87 of 2019BETWEEN: HAMZAH…
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Details
- Case
- [2022] FCA 70
- Decision Date
CaseChat Overview and Summary
Gogo and others brought judicial review applications against the Attorney-General of the Commonwealth seeking a declaration that they were entitled to compensation for their wrongful imprisonment and a declaration that they were entitled to a referral to the Court of Appeal of Western Australia of their convictions pursuant to section 140 of the Sentencing Act 1995 (WA). The applications became otiose and were discontinued, and the court was required to determine whether the applicants should be awarded costs. The court considered the relevant principles regarding the exercise of its discretion to award costs in circumstances where there is no hearing on the merits. The court concluded that it was not possible to determine whether the applicants would have succeeded in the judicial review applications without considering the merits of the case, and it was also not possible to conclude that there was a marked difference in the reasonableness of the actions of the parties to warrant the award of costs to the applicants. The court held that the applicants' costs applications should be dismissed.
The applicants were convicted of people smuggling offences and sentenced to imprisonment. They were released from prison between May and July 2012 and returned to Indonesia. In April 2019, the applicants' solicitor wrote to the Attorney-General requesting a referral of their convictions to the Court of Appeal of Western Australia. The judicial review applications were discontinued, and the applicants sought an award of costs. The court considered the evidence relied on by the parties and the principles applicable to the exercise of its discretion to award costs. The court held that it was not possible to determine whether the applicants would have succeeded in the judicial review applications without considering the merits of the case, and it was also not possible to conclude that there was a marked difference in the reasonableness of the actions of the parties to warrant the award of costs to the applicants. The court dismissed the applicants' costs applications and ordered that the applicants pay the respondent's costs referrable to the costs applications.
The applicants were convicted of people smuggling offences and sentenced to imprisonment. They were released from prison between May and July 2012 and returned to Indonesia. In April 2019, the applicants' solicitor wrote to the Attorney-General requesting a referral of their convictions to the Court of Appeal of Western Australia. The judicial review applications were discontinued, and the applicants sought an award of costs. The court considered the evidence relied on by the parties and the principles applicable to the exercise of its discretion to award costs. The court held that it was not possible to determine whether the applicants would have succeeded in the judicial review applications without considering the merits of the case, and it was also not possible to conclude that there was a marked difference in the reasonableness of the actions of the parties to warrant the award of costs to the applicants. The court dismissed the applicants' costs applications and ordered that the applicants pay the respondent's costs referrable to the costs applications.
Orders
Orders of the court
1. Each of the applicants be granted leave to:
(a) reopen their case in relation to costs;
(b) file the additional evidence identified in the applicants’ outline of submissions dated 19 July 2021; and
(c) make further submissions in support of their applications for costs.
2. The applications by each of the applicants that the respondent pay their costs of their discontinued judicial review applications be dismissed.
3. Each of the applicants pay the respondent’s costs referrable to their costs applications, including the costs of their application to reopen their case in respect of their costs applications that was filed on 16 June 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons that follow, both of those questions must be answered in the negative with the result that the applicants’ costs applications must be refused.BACKGROUND AND BRIEF CHRONOLOGY On various dates between April 2010 and January 2012, the applicants were each convicted in the District Court of Western Australia of people smuggling: an offence pursuant to s 232A(1) of the Migration Act 1958 (Cth) of facilitating the coming to Australia of non-citizens, reckless as to whether the non-citizens had a lawful right to come to Australia. Each of the applicants was a young Indonesian fisherman who was a crew member on a fishing boat which transported prospective asylum seekers into Australian waters. Each of the applicants was sentenced to a mandatory term of imprisonment for five years with a non-parole period of three years. In late 2010 and early 2011, the Australian Human Rights Commission began to raise concerns about the age of many of the young Indonesian fishermen who had been tried and convicted as adults in respect of people smuggling offences and subsequently incarcerated in adult correctional facilities. Particular concern was expressed about the means by which Commonwealth authorities had purported to determine that the young fishermen were over the age of 18 and therefore liable to be tried as adults. The Commission subsequently conducted an inquiry into those issues. It published its report in July 2012. The report was scathing of the Commonwealth authorities. Meanwhile, no doubt prompted by the concerns that had been expressed by the Commission in the course of its inquiry, the respondent, the Attorney-General of the Commonwealth, directed the Attorney-General’s Department to conduct a review of 28 cases of persons convicted of people smuggling offences who had raised a question as to their age. One of the outcomes of the Department’s review was that between May and July 2012, each of the applicants was either released on licence, or released on parole prior to the expiration of their non-parole periods, pursuant to s 19AP or s 19AL of the Crimes Act 1914 (Cth). Each of them was subsequently returned to Indonesia. Between 4 April 2019 and 8 August 2019, the solicitor acting for the applicants wrote to the Attorney-General and requested the Attorney-General to refer the applicants’ convictions to the Court of Appeal of Western Australia pursuant to s 140 of the Sentencing Act 1995 (WA). That section provides as follows:140. Petition for mercy may be referred to Court of Appeal(1)A petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment, or to the sentence imposed on such an offender, may be referred by the Attorney General to the Court of Appeal either —(a)for the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be); or(b)for an opinion on any specific matter relevant to determining the petition.(1a)When making a referral under subsection (1)(a) the Attorney General, having regard to the petition, may specify the grounds of appeal to be heard and determined by the Court of Appeal.(2) The Court of Appeal must give effect to the referral.
Evidence
Evidence Before The Court
The Attorney-General advanced four primary contentions in support of his submission that costs should not be awarded in favour of the applicants. The first contention was that the applicants had “not established that the [Attorney-General] invited the litigation by his unreasonable behaviour”. The second contention was that the applicants acted unreasonably in commencing the proceedings when they did, and that the proceedings were commenced prematurely. The third contention was that the Attorney-General did not act unreasonably in defending the proceedings. The fourth contention was that the Court could not be satisfied that the applicants would almost certainly have succeeded if the judicial review applications had continued to trial and that in fact it is likely that the applications would have been dismissed. THE EVIDENCE RELIED ON BY THE PARTIES It is, particularly in light of the principles referred to earlier, appropriate to give some brief consideration to the evidence relied on by the parties in respect of the question of costs. Each of the applicants and the Attorney-General relied on all of the evidence which they had filed in the judicial review proceedings. None of the parties objected to that course or made any substantive objections to any of the affidavit evidence, save that some parts of the affidavit evidence were read as submissions rather than evidence. Nor was there any cross-examination. That scenario was extraordinary for at least two reasons: first, the affidavits (including their documentary annexures) filed in the judicial review proceedings were, to say the very least, voluminous; and second, aspects of the affidavit evidence, or at the very least the inferences or conclusions that each of the parties contended that the Court should draw from that evidence, were plainly contentious or controversial. In those circumstances, the approach taken by the parties would, at first blush at least, appear to be antithetical to the principles in Lai Qin and Nichols. It is difficult to see how the Court could possibly resolve the contentious facts and inferences raised by the voluminous documentary evidence in the absence of any cross-examination. It is, in the circumstances, appropriate to give no more than a thumbnail sketch of the general nature and volume of the material relied on by the parties. The applicants jointly relied on two affidavits affirmed by their solicitor, Mr Samuel Tierney, which were said to contain evidence relevant to each of the applications. They contained, amongst other things, a fairly detailed chronological account of the communications between the applicants’ solicitors and the Attorney-General, the Department, and the Attorney-General’s solicitor in respect of the referral applications generally. One of the affidavits, including its annexures, was 102 pages long. Each of the applicants also relied on an additional affidavit sworn by Mr Tierney (and in the case of two of the applicants, two affidavits of Mr Tierney) that specifically related to their case. Some of those affidavits were lengthy. Including their annexures, they ranged between 24 and 179 pages in length.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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