Anees v Minister for Immigration and Border Protection (No 2)

In the case of Anees v Minister for Immigration and Border Protection (No 2), the primary concern was the costs associated with an appeal. The appellant, Mr. Anees, sought a review of the costs order made by the primary judge in the Federal Circuit Court of Australia. The Minister for Immigration and Border Protection was the respondent. The appellant argued that the costs order should be reviewed, particularly in light of his success on the appeal, despite not having advanced certain grounds of appeal before the primary judge.

The court needed to decide whether it was appropriate to disturb the costs order made by the primary judge, particularly given that the appellant had successfully appealed on a ground not advanced before the primary judge. The court also needed to consider the principles regarding the award of costs and whether the conduct of the parties influenced the overall costs order.

The court held that there is no general principle that, in circumstances where an appellant succeeds on a ground not advanced before the primary judge, an adverse costs order in the court below should not be disturbed. The court reasoned that the principles regarding the award of costs are well established, and ordinarily, a successful party is entitled to an award of costs. The court noted that the disaggregation of costs is appropriate only in exceptional cases and that the conduct of the parties can influence the overall costs order, particularly in cases of mixed success. The court concluded that the particular circumstances of the case did not warrant disturbing the costs order made by the primary judge.

The court ordered that the First Respondent pay the Appellant’s costs of the appeal as agreed or as taxed. The court also ordered that the costs order made by the primary judge on 8 February 2019 not be disturbed.