The Federal Circuit and Family Court of Australia (Division 2) has ordered the Minister and Secretary for Home Affairs to pay the applicant’s costs on an indemnity basis in a habeas corpus claim. The applicant in GKX18 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 718 had been held in immigration detention since 2018. In August 2024 he made an application to the Court to be released forthwith on the basis that his detention was unlawful following the landmark decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37. On the last day of the hearing on 16 October 2024, and before the conclusion of the hearing, the Minister issued the applicant a bridging visa which was due to expire four months after the date it was issued. The applicant successfully opposed the Minister’s oral application to dismiss his habeas claim and the matter remains before the Court.

In this costs judgment the Minister for Home Affairs sought to set-off the costs order in favour of the Minister from previous proceedings. The applicant was also successful in opposing this application. The Court accepted the applicant’s submission that a set-off would discourage lawyers from acting on a conditional costs basis and that it would be contrary to the public interest. The Court concluded that “there is a public interest in people challenging governmental decisions being adequately legally represented, and allowing a set-off in circumstances such as the present may discourage appropriate lawyers from acting. This factor weighs particularly heavily in the present case, where, on the material presently before me, the respondents have behaved unreasonably. Consequently, I will order that the costs ordered in the present proceeding not be set-off against the costs in previous proceedings.”

In ordering costs to be paid on the indemnity basis, the Court found that the Minister and Secretary for Home Affairs had acted unreasonably in that they “ought to have released the applicant from detention following the High Court’s decision in NZYQ”. The Court also found that the respondents ran their case “in wilful disregard of known facts or clearly established law” or made “allegations which ought never to have been made” or unduly prolonged the case by “groundless contentions”.

The respondents have sought leave to appeal the decision.

Madeleine Bridgett represented the applicant.

The decision can be found here.