FSJ18 v Minister for Immigration, Citizenship and Multicultural Affairs

In this case, FSJ18, the appellant, is appealing against the costs order made by the Federal Circuit and Family Court of Australia (Division 2) in the context of a proceeding related to a migration decision. The primary judge had initially ordered that the Minister for Immigration, Citizenship and Multicultural Affairs, the first respondent, pay the appellant's costs amounting to $7,853, which was the scale cost fixed by reference to the FCFC Rules. However, the appellant argued that the costs order should not be based on the scale amount as the primary judge had made an error by proceeding on an incomplete version of the appellant’s costs affidavit. The appellant sought an order that the costs order of the primary judge be set aside and replaced with an order for costs as agreed or taxed under Part 40 of the Federal Court Rules 2011 (Cth). The Minister accepted that the primary judge made an error by acting on an incomplete affidavit, which constituted a breach of natural justice, and that the appeal should be allowed on this ground. However, the Minister also argued that the court should determine the correctness of the principle applied by the primary judge in awarding costs before remitting the matter for reconsideration.

The court examined the relevant provisions in the FCFC Act and FCFC Rules and noted that while some decisions suggested the need for “good reason” to depart from the scale amount, the key principle was the exercise of discretion in accordance with the indemnity principle. The court found that the primary judge erred in requiring a “good reason” to depart from the scale amount and that the discretion to award costs should be re-exercised. Consequently, the court allowed the appeal, set aside the costs order made by the Federal Circuit and Family Court, and ordered that the Minister pay the appellant’s costs of the proceeding and the appeal as agreed or taxed under the Federal Court Rules.