Plaintiff S111A/2018 v Minister for Home Affairs (No 5)

In the matter of Plaintiff S111A/2018 versus Minister for Home Affairs (No 5), the Federal Court of Australia was tasked with adjudicating on the costs incurred during a lengthy and complex legal battle. The applicant, who was detained, sought relief from the court, claiming his detention was unlawful. The respondents, representing the Minister for Home Affairs, argued that the proceedings were unnecessarily prolonged, causing them to incur significant costs. The court was required to decide the appropriate allocation of costs between the parties, considering the applicant's substantial success in the proceedings, the disparity in resources between the parties, and the changed circumstances caused by one party.

The court applied the well-established principles governing costs discretion, taking into account the context of an applicant seeking to secure their liberty. The applicant had succeeded in securing substantive relief in respect of both the 2018 ASA and 2020 ASA, as well as the protection visa decision adverse to him. Given the current state of the law, this was likely the maximum relief he could have expected to secure. However, the court noted that the course of the proceedings had been far from straightforward, with both parties engaging in incessant inter-party squabbles and lengthy correspondence that had not advanced the applicant's circumstances. The court emphasised the need for the matter to be tried efficiently, and at a cost proportionate to the length and complexity of the ultimate trial.

The court ordered that the respondents pay the applicant's costs of and incidental to the commencement of the proceeding in the High Court on 17 April 2018, and pay the applicant's costs of the proceeding up until 16 May 2019, to be fixed by way of a lump sum. The respondents were also ordered to pay the applicant's costs of the proceeding from 29 October 2020, to be fixed by way of a lump sum. The respondents were to pay only 70% of the applicant's lump sum costs referred to in order 1(b), but must pay all of the applicant's lump sum costs referred to in order 1(a). If the parties could not agree on appropriate lump sums payable under order 1, then the question of appropriate lump sum costs was to be referred to a Registrar of the Court for determination. Any existing costs orders, and orders reserving costs, were to be vacated.