Dir19 v Minister for Home Affairs
[2020] FCCA 1223
•21 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIR19 v MINISTER FOR HOME AFFAIRS & ORS | [2020] FCCA 1223 |
| Catchwords: MIGRATION – Ruling on costs application. |
| Legislation: Migration Act 1958 (Cth), s.417. |
| Cases cited: Whittenbury v Vocation Limited(No 2) [2020] FCA 653 |
| Applicant: | DIR19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS |
| Third Respondent: | RASHMI IN HIS CAPACITY AS THE HOLDER OF POSITION NUMBER 60019093 |
| File Number: | MLG 1785 of 2019 |
| Judgment of: | Judge Burchardt |
| Hearing date: | Determined on the papers |
| Date of Last Submission: | 15 May 2020 |
| Delivered at: | Dandenong |
| Delivered on: | 21 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | Winstan Lawyers |
| Counsel for the Respondents: | Not applicable |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Each party’s application for costs be dismissed.
The costs of the interlocutory proceedings, including the injunction proceedings before His Honour Judge McNab, be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLG 1785 of 2019
| DIR19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS |
Second Respondent
| RASHMI IN HIS CAPACITY AS THE HOLDER OF POSITION NUMBER 60019093 |
Third Respondent
REASONS FOR JUDGMENT
Introduction
This is a costs dispute in respect of the matter that the parties agree should be transferred to the Federal Court of Australia. The Federal Court of Australia has indicated that such a transfer is indeed appropriate. The matter has had a checkered history in this Court and has been allocated I think to three or four judges from time to time. In order to understand the way in which the parties have put their competing costs arguments, it is necessary to describe the history of this matter.
On 6 June 2019, the applicant filed an application seeking relief arising from the failure or refusal of the second and third respondents to refer the applicant’s request to the Minister for him to consider exercising his power under section 417 of the Migration Act 1958 (Cth).
On 25 June 2019, the first respondent filed a response seeking that the application be dismissed and asserting that the Court had no jurisdiction to review the delegate’s decision.
On 20 September 2019, the applicant filed an application for interlocutory injunctions to restrain the Minister from removing the applicant from Australia and His Honour Judge McNab made orders granting such relief. His Honour relevantly ordered that costs be reserved.
On 15 November 2019, the first respondent filed an application in a case seeking that the substantive application be summarily dismissed.
That matter eventually found its way from His Honour Judge Blake and Her Honour Judge Mercuri’s lists to my docket on 3 March 2020 when I made orders that the parties file supplementary written submissions relating to the summary dismissal application already referred to, and the oral application for the transfer of the matter to the Federal Court of Australia made at an earlier directions hearing on 2 March 2020.
On 17 April 2020, I made orders by consent vacating the forthcoming hearing due that day, dismissing the application for summary dismissal made by the respondent and setting a timetable for the final written submissions on costs.
The applicant’s submissions
The applicant’s submissions divide the proceeding into four substantive parts. First, there is the substantive application for relief sought by the applicant arising from the section 417 complaint. The written submissions note that it is now conceded by the applicant that this Court has no jurisdiction to entertain such a complaint and has not at any stage done so. The second sub-part is the application for injunctive relief before Judge McNab. The third sub-part is the respondent’s objection to competency and the interrelated application for summary dismissal. The final sub-part is the application for transfer to the Federal Court of Australia which the applicant submits was initially contested but ultimately consented to.
The applicant seeks the costs of the injunction application and relevantly asserts at paragraph 4 “The application was vigorously contested by the Minister, and full costs should follow the event”.
The applicant seeks the costs of the application for summary dismissal save for the adjournment on 2 March 2020. The applicant also seeks the costs of the application for transfer to the Federal Court of Australia. Although not stated in terms, the applications for the costs of the summary dismissal application and the transfer to the Federal Court of Australia appear to be put on the footing that the costs should follow the event.
The first respondent’s written submissions
The written submissions note that this Court does not have jurisdiction to entertain the initial application. It is submitted that had the matter proceeded to the initial hearing of the dismissal application on 2 March 2020, that application would have succeeded (paragraph 4).
The written submissions go on to assert, arising from this Court not having jurisdiction, that the transfer application should never have been necessary.
The written submissions go on to seek costs thrown away in relation to the dismissal application and the transfer application and seek otherwise that costs should remain reserved.
Consideration
Both parties’ written submissions appear to adopt the usual rule that costs follow the event. As was recently asserted in Whittenbury v Vocation Limited(No 2) [2020] FCA 653 per Middleton J at [28]:
The usual rule is that costs follow the event. As to where there is a mixed outcome, in Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272, Gummow, French and Hill JJ explained:
Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation.
In this case, the applicant should never have commenced proceedings in the Federal Circuit Court of Australia. The relief sought, despite some earlier equivocation by the applicant, is simply not available. Nonetheless, it is clear from the position that the first respondent now adopts, that relief was always at least potentially available in the Federal Court of Australia, and this is reflected in the consent now given for the transfer of the matter to the Federal Court of Australia.
In a sense both parties have had some measure of success and failure in these interlocutory proceedings. On the applicant’s side, the application for summary dismissal has been resisted and the applicant was successful in the injunction application. The oral application for transfer has in the ultimate succeeded.
Against this however, the respondent is correct to say that the application should never have been lodged in this Court. I note that His Honour Judge McNab reserved the costs of the injunction application. This is a standard outcome where an injunction is granted pending the resolution of the matters in substantive dispute at a full hearing. That full hearing has not yet taken place and it is plainly inappropriate that there be a costs order in relation to the injunction application at this stage.
In the end, I think that the parties’ conduct has, in respect of both of them, been misguided and unreasonable. The applicants should not have begun the case in this Court and to that extent the respondent is correct. Nonetheless, as the subsequent transfer to the Federal Court of Australia shows, there was always potentially something in it, and this is further reinforced by the consent dismissal of the summary dismissal application.
In my view, neither side has had such marked degree of unequivocal success that it is appropriate that any order as to costs be made. It should be noted that all costs are in effect presently reserved and in the event of ultimate success or failure, the Federal Court of Australia will be in at least as good a position to make any necessary orders as to costs which ought to be made.
I am going to order that each party’s application for costs be dismissed but that the costs of the interlocutory proceedings, including the injunction proceedings before His Honour Judge McNab, be reserved.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 21 May 2020
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