COU17 v Minister for Immigration
[2018] FCCA 1708
•29 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COU17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1708 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for review dismissed – whether the applicant’s litigation guardian should be ordered to pay the costs of the application. |
| Legislation: Federal Circuit Court Rules 2001 |
| Cases cited: BUG15 v Minister for Immigration and Border Protection [2018] FCA 634 |
| Applicant: | COU17 By his litigation guardian |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1242 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 16 and 25 May 2018 |
| Date of last submission: | 25 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 29 June 2018 |
REPRESENTATION
| Advocate for the applicant: | The applicant’s litigation guardian |
| Solicitors for the applicant: | None |
| Advocate for the first respondent: | Melanie Montalban |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | DLA Piper Australia |
ORDERS
There be no order as to the costs of the proceeding.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1242 of 2017
| COU17 By his litigation guardian |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
This is an application for costs by the Minister for Immigration and Border Protection against the litigation guardian appointed for the applicant. The litigation guardian resists that order.
The applicant is a minor who is currently five years old. The proceeding was commenced on the applicant’s behalf by his mother. The application was filed on 13 June 2017. At a directions hearing before a registrar on 7 February 2018, the applicant’s mother signed minutes of proposed consent orders by which she agreed to be appointed as the applicant’s litigation guardian. As the registrar considered that he was not empowered to make orders appointing a litigation guardian, the registrar referred the minutes of proposed orders to my chambers. I made the proposed orders by consent in chambers on 16 February 2018.
The application was listed for a show cause hearing on 16 May 2018. The applicant’s mother appeared on his behalf as his litigation guardian. On 16 May 2018, I dismissed the substantive application filed on 13 June 2017 and gave ex tempore reasons for doing so.
The Minister sought an order that the applicant’s litigation guardian pay the costs of the proceeding fixed in the sum of $3,667, which is the amount on scale for a show cause hearing.
The court raised with the parties BUG15 v Minister for Immigration and Border Protection [2018] FCA 634. That case was decided on 11 May 2018. It was an appeal from a decision of this court that had dismissed an application for review from the Administrative Appeals Tribunal. In BUG15, the appellant’s mother was his litigation guardian. This court had made a costs order against her. The litigation guardian was not represented in BUG15.
The Chief Justice dismissed the substantive appeal. However, his Honour was concerned about the costs order made by this court. The Chief Justice said:
18.… There is an issue about the appropriateness of the order for costs below against the litigation representative. It is not clear that her exposure to costs was made known to her.
19.On or before 18 May 2018, the first respondent is to file and serve:
(1) any affidavit thought appropriate as to the circumstances of the appointment of the mother of the appellant as litigation guardian in the Court below; and
(2)any submission of no more than 2 pages as to why this Court should not partially allow the appeal by setting aside the costs order of the Federal Circuit Court if there is no basis to believe that the mother of the appellant received advice as to her personal liability for costs should her son’s application fail.
BUG15 was stood over to a date to be fixed for judgment or hearing on the question of costs against the appellant’s litigation guardian.
In view of BUG15, on 16 May 2018, the present matter was adjourned to 25 May 2018 for hearing on the question of whether the applicant’s litigation guardian should be ordered to pay the first respondent’s costs of the proceeding.
On 24 May 2018, the Minister filed an affidavit affirmed by Melanie Jasmine Montalban on 24 May 2018. That affidavit relevantly stated:
3.On 7 February 2018 I appeared for the first respondent at a first court date hearing before a Registrar of the Court. I do not specifically recall this proceeding, but from the file I understand that the applicant’s mother attended the first court date on 7 February 2018 on behalf of the applicant.
4.Although I do not recall precisely what I said to the applicant’s mother, it is my usual practise (sic) to explain the orders through the interpreter and answer any question that [may] arise.
5.It is also my usual practice to explain that the effect of the order appointing the applicant’s mother as litigation guardian is that she would be responsible for the proceedings and any costs order made against the applicant.
This matter returned to court on 25 May 2018. At that point, the ultimate decision in BUG15 had not been handed down. The Minister made submissions as follows:
a)based on the Minister’s usual practice, the court should find that the applicant’s proposed litigation guardian was given advice at the directions hearing that she would be liable for the Minister’s costs if the application were unsuccessful;
b)the Federal Circuit Court Rules 2001 (“the Rules”) do not require a proposed litigation guardian to be put on notice about costs issues;
c)the applicant could not have conducted the proceeding without a litigation guardian, and the ordinary course is that the litigation guardian would be liable for any adverse costs order; and
d)the litigation guardian has had an opportunity to oppose the costs order being made against her.
The Minister relied on Plaintiff B9/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 27 where Kenny, Edmonds and Rangiah JJ said:
10.It is the case that the appellant, an infant, could only commence and conduct the proceeding through a litigation guardian pursuant to r 9.61 of the Federal Court Rules 2011 (Cth). It is the litigation guardian, the appellant’s mother, who will be liable under any adverse costs order: see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 113 (Williams J). It is therefore appropriate to consider the mother’s motivation and actions in commencing and conducting the proceedings.
11.The mother would not, at least directly, have received any benefit from the appellant’s success in the proceeding. Success would only have allowed the application for a protection visa made on the appellant’s behalf to be considered by the respondent. The mother’s apparent concern in bringing the appeal was to protect the rights of her child. These factors, while relevant, do not diminish the applicability of the rule that costs generally follow the event: see, for example, Oshlack v Richmond River Council at 97 [67] (McHugh J) and 120-123 [134] (Kirby J); Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No 2) (2011) 280 ALR 91 at 95 [15] (Emmett, McKerracher and Foster JJ); and Gondarra at [11] (Kenny J).
I reserved my decision on the costs issue, pending the final decision of the Chief Justice in BUG15.
On 8 June 2018, judgment was delivered in BUG15 v Minister for Immigration and Border Protection (No 2) [2018] FCA 860. The Chief Justice did not order the litigation guardian to pay the costs of the Minister in relation to the appeal but did not set aside the order that required the litigation guardian to pay the costs of the proceedings in this court.
The Chief Justice noted that, in BUG15, a solicitor for the Minister deposed in an affidavit as to his usual practice at directions hearings. The solicitor did not state squarely that he advised the proposed litigation guardian about her exposure to a costs order. In these circumstances, the Chief Justice said in BUG15 (No 2) at [2] that:
It does not appear that the mother was informed of the costs consequences of her being a litigation guardian.
However, his Honour noted at [5] that the litigation guardian in BUG15 was probably aware that cost consequences might flow from unsuccessful litigation. That was because she had previously brought proceedings in the Federal Circuit Court that were unsuccessful and which resulted in an adverse costs order against her. In those circumstances, the Chief Justice was not prepared to set aside the costs order in this court.
However, his Honour considered that the litigation guardian had not been told by the registrar of her exposure to a costs order in relation the appeal. In those circumstances, the Chief Justice declined to order the litigation guardian to pay the costs of the appeal.
In the present case, as in BUG15, evidence of the solicitor’s usual practice, which did not extend to telling a proposed litigation guardian about her exposure to costs, is insufficient to satisfy the court that the litigation guardian was informed of the cost consequences of being appointed as a litigation guardian.
Unlike BUG15, there is nothing in the present case to indicate that the litigation guardian had been involved in her own application to the court which was unsuccessful and pursuant to which she was ordered to pay the Minister’s costs. Consequently, unlike BUG15, there is no basis in the present case to conclude that the litigation guardian was probably aware of the cost consequences of being appointed as a litigation guardian.
BUG15 (No 2) implies that, if a litigation guardian is not aware, through being told or through her own experience, that she might be liable for costs, a costs order should not be made against her. That is the present case.
Of course, Plaintiff B9/2014 would prevail over BUG15. However, Plaintiff B9/2014 did not deal with the question of the appropriate order where the litigation guardian was not aware of her exposure to costs. It was not a question that would have arisen in that case, as the litigation guardian in Plaintiff B9/2014 was represented by solicitors, two senior counsel and two junior counsel. It may be assumed that at least one of them would have told the litigation guardian about her exposure to costs. Accordingly, Plaintiff B9/2014 is distinguishable from the present case, as it was distinguishable from BUG15.
It is immaterial that the Rules do not require that a proposed litigation guardian be put on notice that she might be exposed to costs. The requirement to put the proposed litigation guardian on notice is a fundamental requirement of procedural fairness that does not need to be spelt out in the rules of court.
In all the circumstances of the case, and in accordance with the decision in BUG15, it seems to me that it is not appropriate that the litigation guardian be required to pay the costs of the proceeding. Consequently, there will be no order as to costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 29 June 2018
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