Fko20 v Minister for Home Affairs
[2021] FedCFamC2G 7
•10 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FKO20 v Minister for Home Affairs [2021] FedCFamC2G 7
File number(s): SYG 3046 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 10 September 2021 Catchwords: MIGRATION – costs – applicant and respondents partially successful – applicant departing Australia on day of judgment – certain orders not operative as a result of his departure – order that there be no order as to costs Cases cited: Commonwealth v AJL20 [2021] HCA 21
AOU21 v Minister for Home Affairs [2021] FCAFC 60
FGS20 v Minister for Home Affairs [2021] FCA 874
FKO20 v Minister for Home Affairs [2021] FCCA 1487
Division: Division 2 General Federal Law Number of paragraphs: 9 Date of last submission/s: 3 September 2021 Date of hearing: Decided without oral hearing Place: Sydney Solicitors for the Applicant: Mr D Taylor of Sydney West Legal and Migration Counsel for the Respondents: Ms C Roberts Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 3046 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FKO20
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
10 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.There be no order as to costs of the proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 DRIVER:
On 5 August 2021 I gave judgment in this matter.[1] The applicant in the proceeding seeks his costs in relation to the litigation. That course is opposed by the respondents. The respondents do not press for their costs in this case (although they maintain that this would be the usual course) and submit that each party should bear their own costs in relation to this litigation.
[1] FKO20 v Minister for Home Affairs [2021] FCCA 1487
The orders made on 5 August 2021 provided that the parties were to mediate, including in relation to costs, if the applicant was not removed from Australia by 5 August 2021. The applicant boarded a flight to the United States on 5 August 2021, where he has now been resettled. Accordingly, that order is not enlivened.
The applicant was successful in obtaining certain declaratory relief but was unsuccessful in obtaining a declaration that his detention was unlawful, and an order in the nature of a writ of habeas corpus requiring his release from detention forthwith.
In the ordinary course, costs would follow the event, but the outcome was mixed. The applicant points to perceived policy and administrative shortcomings in the Medevac scheme which in his view made the proceedings necessary. The applicant certainly had genuine grievances but they were overtaken by his departure from Australia.
The proceedings were procedurally complex, which increased costs. For example, there were:
(a)multiple revised applications;
(b)further evidence sent to the Court without leave or prior notice to, or the consent of, the respondents while the matter was reserved;
(c)after the applicant was provided with an opportunity to file any submission addressing the decision in AOU21 v Minister for Home Affairs[2] by 12 May 2021 the applicant then filing submissions on a variety of topics on 20 May 2021;
(d)a notice to admit facts (again, served after the close of evidence) on 1 June 2021;
(e)an email to the Court containing further written submissions in the body of that email without leave, advance notice to, or the consent of, the respondents on 15 June 2021;
(f)further written submissions served on 16 June 2021 (dated 16 May 2021); and
(g)after the applicant was provided with an opportunity to file submissions not exceeding two pages in relation to the High Court’s decision in Commonwealth v AJL20[3] by 2 July 2021, a 17 page document addressing various topics being served on 6 July 2021.[4]
[2] [2021] FCAFC 60
[3] [2021] HCA 21
[4] The 6 July 2021 submissions were filed in proceeding SYG2849/2020 and relied upon in multiple proceedings
Justice Thawley recently noted in FGS20 v Minister for Home Affairs[5]:
The usual rule is that the party who loses bears the costs. Given the submissions made for the applicants, I would observe that an order for costs against a party does not reflect a judgment about whether it was sensible to bring the application or whether it was meritorious or arguable or those kinds of matters, it is simply ordered to compensate (partially) the party who won the issue for the costs that that party incurred. The Court has significant sympathy for the positions of both the first and second applicants (costs were not sought against the remaining applicants), however, that is not ultimately a reason for departing from the usual rule.
[5] [2021] FCA 874 at [22]
In this case, the parties have enjoyed partial success in obtaining or resisting the relief sought, and actions taken in the litigation have contributed to apparently high costs incurred by the respondents. The respondents accordingly submit that they are entitled to their costs in this case.
However, the respondents do not press for their costs, for reasons including that a protracted debate about this issue may ultimately prove more expensive for the respondents, in circumstances where the applicant’s actual ability to meet their costs may be limited.
The respondents submit that the Court should make an order that the parties bear their own costs. I do not know, however, what arrangements have been made between the parties and their legal advisors about payment of their costs. In my view, the preferable approach is to order that there be no order as to costs.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 10 September 2021
SCHEDULE OF PARTIES
SYG 3046 of 2020 Respondents
Fourth Respondent:
SECRETARY, DEPARTMENT OF HOME AFFAIRS
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