Kim v Minister for Home Affairs
[2023] FedCFamC2G 1034
•14 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kim v Minister for Home Affairs [2023] FedCFamC2G 1034
File number(s): SYG 1512 of 2022 Judgment of: JUDGE GIVEN Date of judgment: 14 November 2023 Catchwords: ADMNISTRATIVE LAW – Application for costs in discontinued judicial review application brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth)
COSTS – discontinuance does not result in a “successful party” for the purposes of the general principle that costs follow the event
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Citizenship Act 2007 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 136
Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06, 13.02, 13.03, 15.02, 22.09, 22.15, 29.02, 29.13
Federal Court Rules 1979 (Cth)
Federal Court Rules 2011 (Cth)Cases cited: Armstrong v Australian Community Pharmacy Authority [2012] FCA 577
AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256
BUV18 By His Litigation Guardian v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2020] FCA 1058
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 113
Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 3) (2008) 69 ACSR 264
Plaintiff B9/2014 v Minister for Immigration and Border Protection (No 2)[2015] FCAFC 27
Richards v Han (Costs) [2023] FCA 211Smith v Airservices Australia (2005) 146 FCR 37
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of last submission/s: 26 September 2023 Place: Sydney Solicitor for the Applicant: Mr J Jacobs of Jacobs Legal Solicitor for the Respondent: Ms K Evans of Sparke Helmore ORDERS
SYG 1512 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARIN KIM
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
14 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application in a proceeding filed for the respondent on 6 June 2023 is dismissed.
2.Pursuant to r 13.02(2) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), the time for the making of an application for costs by the respondent is extended up to, and including, 7 September 2023.
3.Pursuant to r 13.02 of the Rules, the applicant's litigation guardian, Mr Doung Uk Kim (aka San Kim), must pay the respondent’s costs on a party/party basis, and disbursements, of and incidental to the proceedings fixed in the sum of $5,798.08.
4.For the purposes of order 3, pursuant to r 22.15 of the Rules, the Court certifies for Counsel.
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 GIVEN:
Before the Court is an application in a proceeding filed on 7 September 2023, by which the Minister seeks costs consequent upon the discontinuance of the proceedings by the applicant, who is a minor child (costs application). That costs application supersedes an earlier application in a proceeding filed on 6 June 2023 which sought similar orders to the costs application, but pursuant to a different part of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) (first application in a proceeding).
BACKGROUND
These proceedings were commenced by an application filed with the Court on 13 October 2022. At the time the proceedings were commenced they were given a return date for directions of 17 November 2022. On that occasion the applicant was represented by Counsel. There was no appearance for the Minister because (as it emerged through the course of exchange between the Court and the applicant’s Counsel) service of the originating process had not been effected. On that occasion, I made orders pertaining to service and listed the matter for further directions on 30 November 2022. At the second directions hearing, the Minister was represented by a solicitor and orders were made for the preparation of the matter for hearing. Those orders included, as a first step, that the Minister file a Court Book of relevant documents, following which the applicant was to file and serve evidence and any amended application on or by 18 January 2023.
On 2 December 2022, the parties approached the Court for an order appointing the applicant’s father, Mr Doung Uk Kim (aka San Kim) as the applicant’s litigation guardian. The Court made the order as sought.
The Minister complied with the Court’s order in relation to the preparation of the Court Book. No documents were filed for the applicant in accordance with the Court’s orders, or at all.
On 1 March 2023, the matter came back before the Court for directions and to address the applicant’s defaults. Each of the parties was represented by Counsel. On that occasion I made orders by consent that the applicant must file evidence by 15 March 2023, with correlative orders for the filing of material for the Minister. The orders also included a self-executing order proposed by the parties for the dismissal of the proceedings, for default, in the event of non-compliance by the applicant with the order for the filing of her evidence.
On 15 March 2023, being the last date upon which the applicant’s evidence was due, the solicitor for the applicant wrote to the Court with the consent of the Minister’s representative to say that no evidence would be filed for the applicant. By this, the Minister apparently consented to the proceedings continuing despite the lack of evidence from the applicant, noting that the proceedings might otherwise have ended by reference to the self-executing order. The Minister later filed evidence in accordance with the 1 March 2023 timetable.
On 8 May 2023, a Notice of Discontinuance was filed in the proceedings for the applicant.
On 6 June 2023, the first application in a proceeding was filed for the Minister. By reference to r 13.03(2) of the Rules, that application was filed within 28 days of the date of the filing of the Notice of Discontinuance. While there is no evidence before the Court as to when the Notice of Discontinuance was served, given that the earliest date upon which it could have been served was 8 May 2023, on any view the first application in a proceeding was made within 28 days of that date.
By email correspondence to my chambers on 16 June 2023, each of the parties consented to the Court determining the first application in a proceeding without any further hearing and instead based on the papers, which was taken to be consent for the purposes of s 136(4)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act), read together with r 15.02 of the Rules.
Upon review of the first application in a proceeding, there appeared to be a discrepancy between the relief sought and the Schedule of the Rules by which costs had been calculated in an Affidavit filed in support. The Court sought clarification from the parties and again offered the opportunity for the matter to be heard at an oral hearing. The outcome of this enquiry was the filing for the Minister of the costs application on 7 September 2023 and written submissions in support thereof on 26 September 2023 (Minister’s submissions). The parties once again elected to have the costs application determined on the papers.
While the Minister’s submissions refer to the costs application as being an “amended application in a proceeding”, out of an abundance of caution I will make orders dismissing the first application in a proceeding and also extending the time for the making of the costs application by reference to r 13.02(2).
EVIDENCE
In considering the costs application, I have had regard to the Court file as well as the following Affidavits filed for the Minister:
(a)Affidavit of Katherine Louise Evans affirmed 28 February 2023 (first Evans Affidavit); and
(b)Affidavit of Katherine Louise Evans affirmed 6 June 2023 (second Evans Affidavit).
LEGISLATION
Chapter 1 of the Rules applies to all proceedings in the Court’s general federal law jurisdiction.
Rule 1.06 of the Rule relevantly provides:
1.06 Application
(1) It is intended that the practice and procedure of the Court in general federal law proceedings be governed principally by these Rules.
…
(4) These Rules apply as follows:
(a) Chapter 1 applies to all general federal law proceedings;
(b) Chapter 2 applies to proceedings under the Australian Human Rights Commission Act 1986;
(c) Chapter 3 applies to proceedings under other Acts including the Administrative Decisions (Judicial Review) Act 1977, the Administrative Appeals Tribunal Act 1975 and the Migration Act 1958;
(d) Chapter 4 applies to proceedings in the Fair Work Division;
(e) Chapter 5 applies to proceedings under the National Consumer Credit Protection Act 2009.
Note:For rules relating to bankruptcy proceedings, see the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021.
Within Chapter 3 of the Rules is Part 27. Rule 27.01 provides as follows:
27.01 Application of Part 27
(1) This Part applies to a proceeding under the AD(JR) Act.
Note: For AD(JR) Act, see rule 1.05.
(2) Chapter 1 applies, so far as it is relevant and not inconsistent with this Chapter, to a proceeding under the AD(JR) Act.
Part 29 of the Rules applies to a proceeding for a remedy to be granted in the exercise of the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in relation to a migration decision: see r 29.02(1) of the Rules. Despite the identity of the respondent in this matter, because the applicant seeks review of a decision made under the Citizenship Act 2007 (Cth), the review application is brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), not s 476 of the Act. By reason of having been brought under the ADJR Act, the instant proceeding is one to which Part 27 of the Rules applies, not Part 29 of the Rules.
Unlike the Rules which apply to migration proceedings, Part 27 of the Rules makes no specific provision for costs. By contrast, r 29.13 of the Rules provides as follows:
29.13 Costs
(1) The Court may, in relation to a proceeding that is concluded, order an unsuccessful party to the proceeding to pay the costs of a successful party in accordance with Division 1 of Part 2 of Schedule 2.
(2) If:
(a) the applicant files a notice of discontinuance in a proceeding in which a respondent has sought costs in the response; and
(b) the applicant does not file with the notice an application in respect of costs;
a Judge or a Registrar may, without hearing the parties, make an order in chambers in accordance with Division 2 of Part 2 of Schedule 2 for the costs of the respondent.
(3) This rule does not limit a party’s right to apply, under Part 22, for an order as to costs of the application.
Note 1: See Division 13.1 of these Rules in relation to discontinuance.
Note 2: See section 136 of the Act in relation to the exercise of jurisdiction in chambers.
Rule 29.13, but more specifically r 29.13(2) of the Rules, provides a regime which is sometimes broadly described as a “default” position in relation to costs in judicial review of the Act. The effect of r 29.13(2) is that, provided certain pre-conditions are satisfied (namely that the applicant is not themselves advancing a position on costs (presumably either by seeking an order in their favour or that the parties each bear their own costs)) and the respondent sought an order of costs by their Response, the Court may make orders in chambers for the costs in favour of the respondent, without the need to hear from the parties. That costs regime for discontinuance of migration proceedings is not self-executing. The Court must still make an order. However, there is a presumption in favour of costs upon the event of discontinuance by an applicant, being in favour of the applicant to the extent that it streamlines a process for the making of such an order, in chambers, and without a hearing. Part 27 contains no such presumption.
In the absence of there being any equivalent provision to r 29.13 of the Rules for costs under Part 27 of the Rules, the Court must instead have regard to Chapter 1 of the Rules which apply to all proceedings.
Rule 13.01 of the Rules permits a party to discontinue an application by filing the prescribed Notice of Discontinuance form approved under the Rules, within particular time parameters referable to the nature and timing of the hearing event.
Rule 13.02 of the Rules provide as follows:
13.02 Costs
(1) If a party discontinues an application, or part of an application, another party to the proceeding may apply for costs.
(2) Unless the Court or a Registrar directs otherwise, an application for costs must be made by a party within 28 days after service on the party of the notice of discontinuance.
(3) If an order for costs is made against a party and the party brings against the party to whom the costs are payable a further proceeding on the same or substantially the same matter, the Court may stay the further proceeding until the costs are paid.
Rule 22.09 of the Act provides as follows:
22.09 Costs and disbursements
Unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to:
(a) costs in accordance with Schedule 2; and
(b) disbursements properly incurred.
Note 1:For costs in a proceeding to which the Bankruptcy Act 1966 applies, see Part 13 of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021.
Note 2:For costs in a migration proceeding, see rule 29.13 and Part 2 of Schedule 2 to these Rules.
Where Counsel is engaged in a matter to which r 22.15 provides as follows:
22.15 Counsel as advocate
If the employment of an advocate is certified as reasonable, the amount payable for counsel to appear is the daily hearing fee and advocacy loading in accordance with Part 1 of Schedule 2.
Schedule 2 of the Rules provides an itemised scale for costs events in proceedings to which the Chapter 1 rules apply (see r 1.06(4) above). As discussed at [16] above, the instant proceedings are such proceedings. Accordingly, the Court has a general discretion to award costs including by reference to the scale amount provided by Schedule 2, Part 1 of the Rules.
The fact that a party is entitled to seek costs pursuant to Schedule 2 of the Rules does not mean that they can seek costs only in accordance with that Schedule. In this matter there does not appear to be anything which would have prevented the Minister from making a calculation of his party/party costs on an ordinary basis, and simply seeking an order in that amount, without reference to Schedule 2. However, where such an application is made within 28 days of service of that Notice of Discontinuance (unless otherwise allowed by the Court), the Court may proceed to determine the application for costs in accordance with Part 22 of the Rules, and specifically r 22.09 and Schedule 2, Part 1 thereto.
COSTS APPLICATION
Amounts sought
Various materials have been filed for the Minister in pursuit of costs. However, each seeks a costs order fixed in a different amount, as follows:
(a)by the costs application, the Minister seeks the following order (emphasis added):
the applicant's litigation guardian pay the respondent’s costs in accordance with r 13.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 in the amount of $5,789.08.
(b)by contrast, the second Evans Affidavit specifies the Minister’s costs as $5,780.08, said to be calculated by reference to Schedule 2, Part 1 of the Rules as follows (footnotes added):
1. In accordance with Item 1 for “Initiating or opposing an application up to the completion of the first court date” in the sum of:
$3,345.70[1]; and
$684.19, for two short mentions calculated on 30 November 2022 and 1 March 2023, calculated in accordance with item 9.[2]
2. In accordance with item 11 for Disbursements reasonably incurred, counsel’s fees in the sum of $1,750.00.[3]
(c)by further contrast, the Minister’s submissions set out the basis upon which the order is sought and calculated and seek an order fixed in the amount of $5,620.98,[4] albeit with no calculation to explain how this figure was reached.
[1] This amount appears to have been included in error as the amount provided in Schedule 2. Part 1, Item one is $3,354.70, which may account for the discordant calculations advanced by the Minister (see [21] to [23] above)
[2] $342.19 per event
[3] Albeit the order sought by the costs application refers seeks costs only, and not disbursements.
[4] Minister’s submissions at [19]
While the Minister’s submissions say he has incurred “party/party” costs in excess of $10,000, this seems inaccurate by reference to the second Evans Affidavit which more plausibly describes this amount as being solicitor/client costs, to which a discount would then be applied to reach a party/party position: see AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256 at [14] (AYT22). By her second Affidavit, Ms Evans deposes to the nature and volume of tasks undertaken in responding to the application. I accept the unchallenged evidence as to the tasks undertaken.
The Minister has not specifically sought an order for disbursements, yet by reference to the second Evans Affidavit and the Minister’s submissions, an amount is sought for Counsel’s fees in the sum of $1,750 (incl GST). This amount has not been calculated by reference to Schedule 2, Part 1, but rather on the face of Counsel’s itemised invoice which forms Annexure “KLE1” to the second Evans Affidavit.
Despite advancing 3 separate amounts, when calculated by reference to the method contended for at [26(b)] above (but using the correct amounts from Schedule 2 of the Rules[5]), the amount which results is the amount sought by the order in the costs application, namely $5,789.08.
[5] See footnote 1 above
Basis for award of costs
The Minister says that he should have his costs of the proceedings on the basis that it is “a general rule in civil proceedings that costs follow the event”,[6] citing Richards v Han (Costs) [2023] FCA 211 (Richard v Han) at [9] per Halley J. In that decision, his Honour said (emphasis added):
In the ordinary course, in the absence of special circumstances justifying some other order, the general rule is that costs will be awarded to the successful party, that is, costs will follow the event: Summers at [14] citing Ritter v Godfrey [1920] 2 KB 47 at 52 –53 (Lord Sterndale MR) and 54 (Atkin LJ); Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496 at 505 (Davies J); Ruddock v Vadarlis (No 2) (2001) 115 FCR 229; [2001] FCA 1865 at [11] (Black CJ and French J).
[6] Minister’s submissions at [2], [11] and [21]
The proposition in Richards v Han is not in doubt. However, its application to the present matter is less clear.
Reference to a party in proceedings in which an applicant discontinues as being the “successful” party, is a misnomer. A number of cases have established that proposition predominantly relying on Ex parte Lai Qin (1997) 186 CLR 622 at 625 per McHugh J. In Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 3) (2008) 69 ACSR 264 (Rickus No 3), Flick J said the following at [98]:
there is no "general rule" that a party who discontinues a proceeding with the leave of the Court pursuant to O 22 r 2(1)(d) of the Federal Court Rules should normally pay the costs occasioned by the discontinuance. It may be accepted that a Court will normally allow a party to discontinue a proceeding if he wants to, provided no injustice will be caused to his opponent. "It is not desirable that a plaintiff should be compelled to litigate against his will": O’Neill v Mann [2000] FCA 1680 at [11] per Finn J. But there is no "general rule", such as suggested on behalf of Mr Rickus, and the order as to costs remains in the discretion of the Court: Smith v Airservices Australia [2005] FCA 997 at [39], [2005] FCA 997; 146 FCR 37 at 48 per Stone J. Where there has been no hearing on the merits and where both parties have acted reasonably, a proper exercise of the discretion may be to make no order as to costs: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) [1997] HCA 6; 186 CLR 622 at 625 per McHugh J. The approach there pursued by McHugh J has been accepted as an appropriate test to apply when proceedings are discontinued under O 22 r 2(1)(d): Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700. It is no part of the function of the Court when a proceeding is discontinued "to make a prediction as to the outcome of a hypothetical case": Clark v ING Life Ltd [2007] FCA 1960 at [16] per Rares J.
While Rickus No 3 was overturned on appeal, that appeal decision did not disturb the above proposition.[7] It should also be observed that Rickus No 3 was determined at a time when the (previous) Federal Court Rules 1979 (Cth) applied, which were in relevantly different terms than the current Federal Court Rules 2011 (Cth) (FCA Rules). The relevant distinction between the two sets of Rules in the Federal Court in terms of discontinuances was described in Armstrong v Australian Community Pharmacy Authority [2012] FCA 577 by Rares J thusly at [9]:
Significantly, the new rules now provide in r 26.12(7) a default or usual position where a notice of discontinuance is filed in any of the three circumstances contemplated by r 26.12(2). This is different to the scheme of O 22 r 2(1) of the Federal Court Rules 1979 (Cth) which provided in O 22 r 2(1)(d) that where a discontinuance was by leave of the Court, no particular costs consequence was prescribed: see my reasons in Wotton v Queensland (2009) 109 ALD 534 at 545–546 [44] and 547–548 [55]. Prior to the introduction of the current rules, the position as to costs where a discontinuance was effected with leave of the Court, left the award of costs entirely within the discretion that the Court has under s 43(2) of the Federal Court Act: see, eg. Smith v Airservices Australia (2005) 146 FCR 37 per Stone J.
[7] See Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2010) 265 ALR 112
In terms of any relevant distinctions between the Rules as they applied in Rickus No 3 and those which apply in the present case, it is sufficient to observe that because:
(a)the instant applicant required neither consent of the respondent, nor leave of the Court in order to discontinue the proceedings;
(b)these are proceedings to which no ‘default’ position or a presumption in favour of the respondent is provided (Cf r 29.13(2) of the Rules); and
(c)the effect of rr 13.01(1) and (2) of the Rules is that there is no automatic order as to costs in favour of a respondent but rather they must actively make an application within 28 days;
costs are entirely at the discretion of the Court: see Smith v Airservices Australia (2005) 146 FCR 37 at [36] and [39] per Stone J.
In considering the exercise of that discretion it is not accurate to say, as the Minister seems to, that the discretion should be exercised in his favour because he has “succeeded”.
In Airservices Australia (supra), her Honour Stone J recorded the following, similar, submission being made in respect of a discontinuance at [40]:
Nevertheless the respondent submitted that the general rule ‘that a successful party in litigation is entitled to an order of costs in its favour’ should apply here unless the applicant is able to establish a departure from that rule by reference to the doctrine of futility or on the basis of ‘any public interest exception’ to the general or usual rule.
Her Honour found the following at [47]:
In this case there has been no hearing on the merits. Moreover, there is nothing to suggest that this is one of those rare cases to which McHugh J referred in Ex parte Lai Qin where I can have any confidence that either party was ‘almost certain to have succeeded if the matter had been fully tried’ despite the respondent’s attempt to, in some way, characterise itself as the successful party. In Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 (‘Gribbles Pathology’) Finkelstein J, at 287, was emphatic that in such a case, ‘it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances’. By ‘special circumstances’ I do not understand his Honour to mean other than that the issue of costs in a case such as the present must be determined having regard to all of the circumstances of the case, the underlying policy in the Rules and the conduct of the parties.
The Minister did not set out to demonstrate that there is any patent futility in the proceedings continuing, such that he was almost certain to have succeeded. The Minister points to what is said to be a lack of consultation with the Minister in relation to the discontinuance, and by submission says[8]:
The applicant did not discontinue the proceedings due to a negotiated position between the parties or in response to material filed by the Minister. The applicant did not indicate any intention to discontinue or seek to have any of the directions hearings vacated in order for her to consider discontinuance. In these circumstances, it is appropriate for costs to follow the event given the significant costs incurred.
[8] Minister’s submissions at [21]
There is no evidence before the Court to as to discussions, or lack thereof between the parties in relation to the discontinuance. The Court is also not privy to what factor/s might have contributed to the decision of the applicant to discontinue the proceedings. However, in circumstances where the Rules presently accommodate discontinuance without leave of the Court up to 14 days prior to a final hearing, there does not seem to be any basis upon which the applicant should be particularly criticised for the timing of the discontinuance. Where an applicant is desirous of discontinuing their prosecution of proceedings it is in the interests of all parties, and the Court’s resources, that they do so in a timely fashion and at the earliest opportunity. There is nothing before me to indicate that did not occur in the present case.
Consideration
Award of costs
If, by deploying the expression that costs ought “follow the event”, the Minister is intending to say that he has incurred costs by diligently meeting the judicial review application which, by reason of the applicant’s abandonment renders those costs wasted, and that said abandonment constitutes “the event”, that is an attractive proposition. It is also consistent with the principles that prejudice to a party (for example by amendment) which causes another party to expend time and money meeting a case which will now no longer be prosecuted usually can, and should, be ameliorated by costs.
As a model litigant, the Minister will often undertake work both in and out of Court to achieve (what might be colloquially referred to as) a “level playing field”. As such, I take into account that not all steps taken by the Minister in these proceedings were unilaterally for his benefit only. For example, in proceedings in this Court which involve the Minister (even if not migration proceedings for the purposes of Part 29) the Court directs that the respondent undertake preparation and filing of the Court Book, irrespective of whether the applicant is represented or not. It can be accepted that that is a labour and cost-intensive task (both in terms of human and physical resources) which is not solely so the Minister can advance his case. It is for the mutual benefit of the parties, and also assists the Court. In the present case, the Minister attended to this task, as ordered.
In Airservices Australia at [44], Stone J said:
Although the reasons for discontinuance may vary considerably, it is likely to be in the interests of justice that in those circumstances the respondent to the claim should have those costs met by the discontinuing party.
I agree. I am also of the view that given the Minister (and therefore the public) have expended costs which are now wasted in meeting the applicant’s case, that this is not a situation where the outcome should simply be that each party bears their own costs.
In all the circumstances of this case I am satisfied that the Minister should have some part of his costs. That is not because he has “succeeded”. He has not. Rather, the Minister has expended (public) funds in seeking to meet the applicant’s case which was then abandoned, as well as by taking steps which assisted the applicant and the Court. In that regard I take into account a number of aspects of the early stages of this case where the applicant’s approach to the matter was somewhat haphazard. I am satisfied that by reason of the applicant having discontinued the proceedings, the costs incurred by the Minister have been wasted, and the prejudice caused can be remedied by an order for some part of those costs.
Accordingly, I am satisfied that a costs award which meets the items specified by the Minister as forming the basis for his costs, is appropriate.
There remains though the fact that despite apparently applying the same formula to calculate the costs by reference to those items, three different figures are advanced (see [26(b)] above). By reference to Schedule 2, Part 1 of the Rules, the amount of party/party costs should be as follows:
(a)$3,354.70[9]; and
(b)$684.38;[10]
Totalling: $4,039.08.
[9] 1 x Item 1 (for “Initiating or opposing an application up to the completion of the first court date”)
[10] 2 x Item 9 (for “short mentions” on 30 November 2022 and 1 March 2023) calculated on the basis of $342.19 per event.
Counsel fees
In addition to this, the Minister seeks (by submissions but not the costs application itself) the sum of $1,750 (GST incl) for Counsel’s fees.
I am satisfied, for the purposes of r 22.15 of the Rules, and in recognition of the assistance to the Court at the directions hearing on 1 March 2023, that this case warrants certification for Counsel.
The Minister seeks reimbursement for Counsel’s fees as a disbursement. By reference to r 22.15 and Schedule 2, Part 1, Item 11, the manner for calculating Counsel’s fees under Schedule 2 is to take the daily hearing fee (which applies to solicitors (Item 9)) and add to it the advocacy loading (Item 10). It is not expressly clear as to how Counsel’s fees are otherwise calculated if not for a Court hearing event. However, I infer that the best approach to this question would be to apply the daily hearing fee scale in item 9 as being a daily brief fee for Counsel, to which the advocacy loading is added for appearance work in Court.
Counsel’s invoice has not been calculated by reference to Schedule 2. The total sought by it (being $1,750 (including GST)) has been calculated by reference to Counsel’s hourly rate. However, the amount sought equates to approximately the same figure as would result by applying Schedule 2 for approximately half a day’s brief fee[11] and a short mention with added advocacy loading.[12] As such, I am satisfied that the amount sought can be reasonably certified for, and can also be considered a disbursement: AYT22 at [14].
[11] Schedule 2, Part 1, Item 9(b): $1,255.75
[12] Schedule 2, Part 1, Item 9(b) + item 10: $342.19 + $171.10 = $513.29
Adding the amount sought for Counsel’s fees to the appropriate amount for the Minister’s party/party costs (see [46] above) is $5,789.08. I will make an order in this amount.
Litigation guardian
Lastly, the order sought by the costs application is that the costs order be made against the applicant’s litigation guardian.
Despite an absence of any submissions from the Minister in this regard, I find that having consented to being the litigation guardian of his son, who could not otherwise commence or continue proceedings, if a costs order is to be made, it should be made against the applicant’s father: see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 113 per Williams J, Plaintiff B9/2014 v Minister for Immigration and Border Protection (No 2)[2015] FCAFC 27 at [10] per Kenny, Edmonds and Rangiah JJ and BUV18 By His Litigation Guardian v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2020] FCA 1058 at [36] per Bromwich J.
Accordingly, the costs order in favour of the Minister will be made in respect of the applicant’s litigation guardian.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 14 November 2023
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