Gogo v Attorney-General (Cth)

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.