Eyk18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 234
•15 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EYK18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 234
File number(s): SYG 2704 of 2018 Judgment of: JUDGE LAING Date of judgment: 15 March 2024 Catchwords: MIGRATION – costs – cost sought by the Minister in an amount above scale – relevant principles – fixed costs order made Legislation: Migration Act 1958 (Cth) ss 48A, 48B, 417
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, rr 22.02, 22.09, 29.13
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 214
Cases cited: AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1252
AOU21 v Minister for Home Affairs (No 2) [2021] FCAFC 212
BKW17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCAFC 8
CGP21 v Minister for Home Affairs [2021] FedCFamC2G 11
CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467
EYK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 8
FGS20 v Minister for Home Affairs (No 2) [2021] FedCFamC2G 325
FHE20 v Minister for Home Affairs (No 2) [2021] FedCFamC2G 324
Neptune Hospitality Pty Ltd v Ozmen Entertainment Pty Ltd (costs) [2020] FCAFC 74
Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15
N.V. Sumatra Tobacco Trading Company v British American Tobacco Services Ltd [2011] FCA 1295
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217
Richards v Han (Costs) [2023] FCA 211
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of last submission/s: 12 February 2024 Date of hearing: 19 January 2024 Place: Sydney Solicitor for the Applicant: Mr D Taylor of Sydney West Legal and Migration Solicitor for the First Respondent: Ms C Warren of Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2704 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EYK18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
15 MARCH 2024
THE COURT ORDERS THAT:
1.The applicant pay the first respondent’s costs of these proceedings fixed in the amount of $14,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application made by the first respondent (Minister) for costs to be fixed in an amount above scale. This follows delivery of judgment in EYK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 8 (Substantive Judgment). In the Substantive Judgment, an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) was granted, however the application for judicial review was otherwise dismissed.
The parties’ respective positions
The Minister seeks that costs in his favour be fixed in the amount of $28,000 or, alternatively, $14,000.
The applicant seeks an order that each party bear their own costs of the proceedings or, alternatively, that the Minister be awarded scale costs less the applicant’s scale costs of the extension of time application.
Principles
Section 214(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCA Act) refers to the general jurisdiction of this Court to award costs in proceedings that are before it. The award of costs is generally in the discretion of the Court, except as otherwise provided for under legislation or the Court’s rules: s 214(3) of the FCFCA Act.
Rule 22.02(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) permits the Court to set an amount of costs in a proceeding. Rule 22.09 relevantly provides that a party entitled to costs is entitled to such costs in accordance with Schedule 2 to the Rules, as well as disbursements properly incurred, unless the Court orders otherwise.
Pursuant to rule 29.13(1), the Court may order an unsuccessful party in a proceeding to pay the costs of the successful party in accordance with Division 1 of Part 2 of Schedule 2 to the Rules. However, rule 29.13(3) confirms that a party may seek costs under Part 22 of the Rules.
Division 1 of Part 2 of Schedule 2 to the Rules contains what is commonly referred to as the Court’s “scale” in relation to migration proceedings. It states the following in relation to such proceedings that have been determined other than by discontinuance:
Costs for migration proceedings that have concluded Item Description Amount (including GST) 1 A proceeding concluded at or before the first court date for the proceeding $1,675.75 2 A proceeding concluded:
(a) after the first court date for the proceeding; and
(b) at or before an interlocutory hearing$4,189.38 3 A proceeding concluded at a final hearing $8,371.30
Whilst due regard is to be had to the Court’s scale, the Court is not bound to impose it. In an application such as the present, the Court will consider what represents “a fair indemnity for the costs the successful party has incurred”: CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467 at [23]-[28] per Judge Manousaridis.
At the handing down of judgment in this matter, the applicant made fairly general and brief references to various cases in which it has been ordered that parties bear their own costs in migration proceedings, or where costs ordered in favour of a party have been limited. Those cases included BKW17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCAFC 8 at [6]; AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1252 at [88]; FGS20 v Minister for Home Affairs (No 2) [2021] FedCFamC2G 325 at [4]; FHE20 v Minister for Home Affairs (No 2) [2021] FedCFamC2G 324 at [5]-[6]; CGP21 v Minister for Home Affairs [2021] FedCFamC2G 11 at [59]; and AOU21 v Minister for Home Affairs (No 2) [2021] FCAFC 212 (AOU21) at [10]-[13].
For whatever reason, those cases were, by and large, not the subject of written submissions that were subsequently filed by the parties detailing their respect positions on costs. An exception is AOU21, from which the following paragraphs were extracted in the applicant’s written submissions:
4… In the… proceeding in the Court’s original jurisdiction, the respondents submit that there should be no order as to costs on the basis that AOU21 was only successful in obtaining the first of the declarations sought by him and his other claims for relief were dismissed…
10We accept AOU21’s submission that, while the outcomes of the two proceedings were mixed, he substantially succeeded. This is because, in the original jurisdiction proceeding, he successfully contended that the three preconditions in s 198AH(1A) of the Migration Act 1958 (Cth) were met and that the duty to remove him to a regional processing country as soon as reasonably practicable under s 198AD(2) was engaged. This was his principal contention. AOU21’s success is reflected in the terms of the declaration made by the Full Court.
11Nevertheless, AOU21 failed to establish any of his other claims for substantive relief (in particular his request for an order that he be released from detention, an order by way of mandamus to remove him to a regional processing country, an order in the nature of prohibition preventing his detention under s 189 of the Migration Act and a declaration that his immigration detention was unlawful). AOU21 also failed to establish that his detention was unlawful at any relevant time. His failure on these matters should be taken into account and reduce the costs order in his favour in the amount of 20%.
The Minister relied upon authorities in support of the general rule that costs usually follow the event: see for example Richards v Han (Costs) [2023] FCA 211 at [9]. It was submitted that the Court will only deprive a successful party of costs when an issue was “dominant or separable”: Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 [63]-[66]; Neptune Hospitality Pty Ltd v Ozmen Entertainment Pty Ltd (costs) [2020] FCAFC 74 (Ozmen) at [6]. It was further submitted that the Court ought not to “cast undue analysis upon whether a successful party has been unsuccessful on “particular issues” in the context of its predominant success in the controversy overall”: N.V. Sumatra Tobacco Trading Company v British American Tobacco Services Ltd [2011] FCA 1295 at [17]; cited with approval in Ozmen at [6].
Evidence regarding the costs incurred
The Minister relied upon an affidavit affirmed by Madeleine Grace Kelly on 11 January 2024. That affidavit stated that the actual legal costs incurred by the Minister in respect of these proceedings were estimated to exceed $36,625.49 (excluding GST), excluding the preparation for and attendance at the delivery of judgment. Those costs were stated to include:
(a)professional fees in excess of $29,467.53 (excluding GST); and
(b)Counsel's fees in the sum of $7,272.82 (excluding GST).
The costs were stated to include the following:
(a)perusing the application and accompanying affidavit filed on 21 September 2018;
(b)preparing, filing and serving the notice of address for service filed on 12 October 2018;
(c)preparing, filing and serving the response filed on 12 October 2018;
(d)preparing, filing and serving the court book filed on 29 October 2018;
(e)perusing the affidavit filed by the applicant on 13 April 2023;
(f)perusing the affidavit filed by the applicant on 14 April 2023;
(g)perusing the (further) affidavit filed by the applicant on 14 April 2023;
(h)perusing the affidavit filed by the applicant on 16 April 2023;
(i)perusing the outline of submissions filed by the applicant 17 April 2023;
(j)filing and serving the outline of submissions, prepared by Counsel, on 29 May 2023;
(k)corresponding with the applicant's representative in relation to their proposed adjournment application on 5 June 2023;
(l)preparation for, and instructing Counsel at the hearing on 5 June 2023;
(m)preparation for and attendance at the hearing by Counsel on 5 June 2023;
(n)preparing, filing and serving the affidavit filed on 30 June 2023;
(o)perusing the amended application filed by the applicant on 26 June 2023;
(p)perusing the outline of submissions filed by the applicant on 29 September 2023;
(q)perusing the outline of submissions filed by the applicant on 1 October 2023;
(r)filing and serving the outline of submissions, prepared by Counsel, on 13 October 2023;
(s)perusing the outline of submissions in reply filed by the applicant on 17 October 2023;
(t)preparation for, and instructing Counsel at, the hearing on 20 October 2023;
(u)preparation for and attendance at the hearing by Counsel on 20 October 2023; and
(v)correspondence with the Court regarding listing of the matter for judgment on 9 January 2024.
Overview of the parties’ submissions
In submissions filed on 30 January 2024, the Minister contended that he had achieved substantial success in the proceedings, with the substantive application before the Court ultimately being dismissed. The Minister contended that costs should follow the event. The amount of $28,000 was submitted to represent a reasonable amount for party/party costs. This was considering the complexity of the matter, the multiple affidavits and five sets of submissions that were filed by the applicant, and the requirement for two hearings (on 5 June 2023 and 20 October 2023).
In submissions filed on 6 February 2024, the applicant contended that the parties ought to bear their own costs of the proceedings. Alternatively, the applicant submitted that the Minister should only be entitled to scale costs less the applicant’s scale costs of the extension of time application. This was, in essence, for the following reasons:
(a)the basis upon which the Minister succeeded in the overall proceedings, by reference to the previous grant of Ministerial intervention under s 417 of the Migration Act 1958 (Cth) (Act), was raised by the Minister late in the proceedings and the Minister’s arguments “shift[ed]” in relation to the issue;
(b)the applicant had been successful regarding the other main issues in the proceedings, including as to whether the extension of time ought to be granted and whether the Tribunal’s decision was affected by relevant error;
(c)the matters upon which the applicant succeeded were of some practical consequence for the applicant; and
(d)the applicant offered to settle the matter on 26 July 2023, seeking a pathway to lodging a fresh protection visa application, in response to which the Minister could have settled the matter by lifting the bar under s 48A of the Act through utilisation of the power under s 48B.
In response, the Minister contested that the developments in the Minister’s arguments regarding the s 417 issue were precisely as contended by the applicant. The Minister also disagreed with the applicant regarding the nature of the findings that were made in the Substantive Judgment. Although the Minister accepted that the applicant was not expressly informed of the Minister’s position regarding s 417 of the Act until the Minister’s submissions were filed on 29 May 2023, the Minister submitted that the grant of Ministerial intervention had previously been known to the applicant. The Minister suggested that it was for the applicant to seek advice regarding the effect of this. The Minister observed that the applicant had been able to file submissions on the issue prior to the first scheduled hearing. The Minister disputed the applicant’s suggestion that he had necessarily assured, or advanced, his position regarding any application for the exercise of discretion under s 48B of the Act lifting the bar to a further visa application. The Minister submitted that the Court should not “divvy up costs” according to relative success on issues when the Minister had been successful on the central issue in dispute. The Minister submitted that costs should be awarded to the Minister in the amount of $28,000 or, alternatively, $14,000 by reference to the Minister’s costs incurred after the s 417 point was raised in submissions filed on 29 May 2023.
Consideration
I accept that the present case was a matter of considerable complexity over and above what may ordinarily be expected in a migration matter. The applicant sought an extension of time for review of a decision of the Tribunal that had been substituted for another decision through Ministerial intervention under s 417 of the Act. The Minister submitted that the application ought not to succeed for this (and other) reasons. No party was able to take me to any authority that was directly on point. The complexity of the matter influenced the ultimate decision to grant the applicant an extension of time, even though his application was otherwise ultimately dismissed.
I also accept that the matter involved a significant amount of material, as well as a considerable number of procedural steps prior to its resolution. Five affidavits were filed by the applicant (although one was largely duplicated and one annexed a proposed amended application). Three different iterations of applications were successively sought to be relied upon by the applicant, over a period of some years. The applicant filed and served five sets of written submissions. Two affidavits were filed by the Minister, as well as two sets of written submissions. The hearing on 5 June 2023 was adjourned, part heard, following which the third iteration of the application relied upon by the applicant was filed and served. A relatively lengthy further hearing occurred on 20 October 2023.
I accept the applicant’s submission that there was delay in the raising of the Minister’s position regarding s 417 of the Act. The Minister’s position was not raised in the Response filed by the Minister on 12 October 2018 and only appears to have been raised when written submissions were filed by the Minister on 29 May 2023, in the week before the first scheduled hearing. This was of some practical consequence. Although the applicant made some attempt to address the issue in submissions filed on 2 June 2023, the limited notice that he had been given informed adjournment of the hearing on 5 June 2023. There is some force to the Minister’s submission that the applicant ought to have considered the potential effect of the grant of Ministerial intervention prior to filing his application with the Court. However, as was found in the Substantive Judgment, the legal consequences of that position were not the subject of any authority that was directly on point. For this reason, and given the complexity of the issue, I similarly do not make any particular criticism of the Minister regarding its late raising. That said, I accept that the delay in raising the issue increased the costs incurred by the parties and that this should potentially bear upon the costs order ultimately made.
I do not accept that other developments in the Minister’s arguments on the s 417 point mean that any costs order in favour of the Minister ought to be reduced. As was submitted by the Minister, it was ultimately considered unnecessary in the Substantive Judgment to determine certain of the Minister’s arguments regarding the availability of relief. This is because it was found that the applicant had not demonstrated that the relief sought ought to be granted, having regard to the persuasive force of the Minister’s arguments regarding Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 (see [51]-[59] of the Substantive Judgment).
I accept that the applicant experienced some success in the proceedings, including regarding his extension of time application and his position in relation to the lawfulness of the Tribunal’s decision. Neither party sought to direct me to any authority determining whether the costs of an extension of time application in migration proceedings ought ordinarily to be regarded as costs in the cause, or severable from the ultimate outcome in the matter. I nonetheless take into account that costs were expended by the parties towards the extension of time application, and in relation to the lawfulness of the Tribunal’s decision, in respect of which issues the applicant was successful.
I do not accept the applicant’s contention that his success on these issues means that he was substantially successful in the proceedings as a whole. Whilst the applicant was granted an extension of time regarding the making of his application, that application was ultimately dismissed. No other orders were made in his favour. No declarations were sought or made regarding the lawfulness of the Tribunal’s decision, although I accept that the applicant may view the findings in the Substantive Judgment as being of some practical assistance in the preparation of any subsequent application regarding s 48B of the Act having regard, inter alia, to the relevant guidelines. The discretionary nature of that power, however, renders the practical effect of the Substantive Judgment in that regard uncertain. I do not consider that it was unreasonable for the Minister to have declined to lift the bar during the course of the proceedings, such that that this should have any bearing on the question of costs.
I do not accept that scale costs would represent a “fair indemnity” regarding the Minister’s costs, given the complexity of the matter and in particular the issue upon which the outcome of the matter turned. The applicant has also not persuaded me, on the limited submissions that have been made, that costs regarding the extension of time issue should be isolated or subtracted from the orders made, as opposed to being taken more generally into account on the issue of costs. Such costs may not be readily severable from costs expended on the issue upon which the Minister succeeded, given that the overall merits of the substantive application were a significant consideration in determining the extension of time application.
Conclusion
The award of costs in this matter is not a straightforward exercise. It was a matter involving some legal and procedural complexity, some broader significance, mixed success regarding the issues and orders, and an ultimate outcome that was in the Minister’s favour.
Considering the above in its totality, together with the delay in the raising of the decisive point, I am inclined towards the view that the lower bracket of costs suggested by the Minister is reasonable and should be the result on the question of costs. I note that this is not because I regard the delay in raising the s 417 issue as entirely disentitling in the particular circumstances of this case. As will be apparent from the above, this is one of a number of matters (albeit an important one) that I have weighed in determining what I consider would be a fair award of costs in the particular circumstances of this case.
I will accordingly order that the applicant pay the Minister’s costs of these proceedings fixed in the amount of $14,000.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Deputy Associate:
Dated: 15 March 2024
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