EMJ18 v Secretary, Department of Home Affairs (No 2)

[2024] FCAFC 88

FEDERAL COURT OF AUSTRALIA

EMJ18 v Secretary, Department of Home Affairs (No 2) [2024] FCAFC 88

Appeal from:

VKJY v Secretary, Department of Home Affairs [2023] AATA 2551

File number(s):

NSD 1096 of 2023

Judgment of:

PERRY, SARAH C DERRINGTON AND HORAN JJ

Date of judgment:

28 June 2024

Catchwords:

PRACTICE AND PROCEDURE – where unsuccessful applicant ordered to pay the respondent’s costs of the application – where Court notified after delivery of reasons of post-hearing concession made by respondent as to costs – previous costs order set aside and replaced with order that there be no order as to costs

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)

Federal Court Rules 2011 (Cth) r 39.04

Cases cited:

EMJ18 v Secretary, Department of Home Affairs [2024] FCAFC 87

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

3

Date of last submissions:

22 February 2024

Date of hearing:

1 March 2024

Counsel for the Applicant:

Mr S Lloyd SC, Mr J Smith

Solicitor for the Applicant:

Varess

Counsel for the Respondent:

Mr P Herzfeld SC, Mr G Johnson

Solicitor for the Respondent:

Clayton Utz

ORDERS

NSD 1096 of 2023

BETWEEN:

EMJ18

Applicant

AND:

SECRETARY, DEPARTMENT OF HOME AFFAIRS

Respondent

ORDER MADE BY:	PERRY, SARAH C DERRINGTON AND HORAN JJ
DATE OF ORDER:	28 JUNE 2024

THE COURT ORDERS THAT:

1.Order 2 of the orders dated 28 June 2024 be set aside.

2.There be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. On 28 June 2024, the Court dismissed the applicant’s appeal on a question of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal. The Court made orders that the application be dismissed and that the applicant pay the respondent’s costs of the application. Reasons were published in EMJ18 v Secretary, Department of Home Affairs [2024] FCAFC 87.

2. Immediately following the delivery of judgment, it was drawn to the Court’s attention that the solicitors for the respondent had sent an email to the Court on 8 March 2024 (one week after the hearing of the application) advising that the respondent did not oppose the Court making an order that there be “no order as to costs” (in the event that the application were to be dismissed).  Although the respondent’s position at the hearing had been that costs should follow the event, senior counsel for the respondent had indicated at that time that his client would inform the Court if there was any alteration in its position as to costs following the hearing. 

3. In the circumstances, including having regard to the matters referred to in the judgment of Perry and Horan JJ at [86], the Court considers that the concession made by the respondent in the post-hearing correspondence is appropriate. Accordingly, pursuant to r 39.04 of the Federal Court Rules 2011 (Cth), order 2 of the orders previously made by the Court is set aside, and it is instead ordered that there be no order as to costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Perry, Sarah C Derrington and Horan.

Associate:

Dated:       28 June 2024