Minister for Immigration and Border Protection v Aulakh (No 2)
[2018] FCAFC 108
•13 July 2018
FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Border Protection v Aulakh (No 2) [2018] FCAFC 108
Appeal from: Aulakh & Ors v Minister for Immigration & Anor [2017] FCCA 544 File number: VID 376 of 2017 Judges: TRACEY, MORTIMER AND MOSHINSKY JJ Date of judgment: 13 July 2018 Catchwords: COSTS – Court’s discretion as to costs – where appellant succeeded on a contention that was not raised below – where appellant accepted that some reduction in the costs that would otherwise be ordered was appropriate Legislation: Federal Court of Australia Act 1976 (Cth), s 43 Cases cited: Latoudis v Casey (1990) 170 CLR 534
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Date of hearing: Determined on the papers Date of last submissions: 26 June 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Appellant: Mr PRD Gray QC with Mr L Brown Solicitor for the Appellant: Sparke Helmore Lawyers Solicitor for the First, Second, Third and Fourth Respondents: Nandan Vaityte Counsel for the Fifth Respondent: The Fifth Respondent did not make submissions ORDERS
VID 376 of 2017 BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Appellant
AND: MANINDER KAUR AULAKH
First Respondent
GURWYN SINGH JAURA
Second Respondent
DIYA JAURA (and others named in the Schedule)
Third Respondent
JUDGES:
TRACEY, MORTIMER AND MOSHINSKY JJ
DATE OF ORDER:
13 JULY 2018
THE COURT ORDERS THAT:
1.There be no order as to costs in relation to the proceeding in the Federal Circuit Court of Australia.
2.In relation to the appeal to this Court:
(a)the first respondent pay the appellant’s costs incurred after 31 August 2017;
(b)as ordered on 15 August 2017, the appellant pay the respondents’ costs of the hearing on that day (the reference to the “respondents” to be read as referring to the first to fourth respondents);
(c)otherwise, there be no order as to costs.
THE COURT DIRECTS THAT:
3.Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the appellant’s costs referred to in paragraph 2(a) and the first to fourth respondents’ costs referred to in paragraph 2(b).
4.In the absence of any agreement pursuant to paragraph 3 of these orders, within 21 days:
(a)the appellant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) in relation to the costs referred to in paragraph 2(a); and
(b)the first to fourth respondents file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) in relation to the costs referred to in paragraph 2(b).
5.Within a further 14 days, the first respondent and the appellant respectively file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).
6.In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the appellant’s costs referred to in paragraph 2(a) and the first to fourth respondents’ costs referred to in paragraph 2(b) be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
On 19 June 2018, the Court gave judgment in this matter. The orders made by the Court on that occasion were to the effect that: the Minister have leave to amend his notice of appeal; the appeal be allowed; and the orders of the primary judge be set aside and in lieu thereof it be ordered that the application be dismissed. In relation to costs, the Court ordered that, within seven days, the parties file and serve written submissions (of no more than three pages). It was indicated that the issue of costs would be dealt with ‘on the papers’. The parties have now filed written submissions on costs. These reasons, which deal with the issue of costs, should be read together with the reasons published on 19 June 2018.
By way of context, we note the following matters:
(a)The proceeding before the Federal Circuit Court of Australia was an application for judicial review of a decision of the Migration Review Tribunal. The proceeding was commenced by Ms Aulakh and the second, third and fourth respondents.
(b)The primary judge held that the Tribunal’s decision was affected by jurisdictional error and made an order in the nature of certiorari, quashing the Tribunal’s decision, and an order in the nature of mandamus, directing the Tribunal to hear and determine the application for review according to law. The primary judge also ordered the Minister to pay the costs of Ms Aulakh and the second, third and fourth respondents.
(c)By notice of appeal filed on 13 April 2017, the Minister appealed to this Court from the orders of the Federal Circuit Court.
(d)The appeal was initially listed for hearing before the Full Court on 15 August 2017. On that day, the Minister made an oral application to amend his notice of appeal. In the course of the hearing, the Minister applied for an adjournment of the hearing. The Court granted the adjournment, and made an order that, on or before 31 August 2017, the Minister file and serve: an application for leave to amend his notice of appeal; an affidavit in support of that application; and certain relevant materials. The Court ordered the Minister to pay the respondents’ costs of the hearing on that day. The reference in the order to “the respondents” should be read as referring to the first to fourth respondents.
(e)On 31 August 2017, the Minister filed an application for leave to amend his notice of appeal and an affidavit in support of that application. The affidavit annexed a draft amended notice of appeal, which included a new paragraph 1(b). This raised a new argument that had not been raised below.
(f)On 22 February 2018, the hearing of the appeal, together with the Minister’s application for leave to amend, took place.
(g)On 19 June 2018, the Court gave judgment on the appeal, and made orders to the effect outlined above. Separate reasons for judgment were delivered by Tracey and Moshinsky JJ, and by Mortimer J. In summary, Tracey and Moshinsky JJ were of the view that the Minister should be granted leave to amend his notice of appeal to insert a new paragraph 1(b) and that ground 1 should be upheld on this basis. It was therefore unnecessary to consider paragraph 1(a). Tracey and Moshinsky JJ agreed with Mortimer J that grounds 2 and 3 of the notice of appeal should be upheld, for the reasons given by her Honour. Mortimer J was of the view that leave to amend should be refused. Her Honour considered that ground 1 should be upheld on the basis of paragraph 1(a) of the notice of appeal. (Paragraph 1(a) reflected arguments that the Minister had made at first instance.) Her Honour was of the view that grounds 2 and 3 should also be upheld.
The parties’ respective positions on costs are as follows:
(a)The Minister seeks an order that Ms Aulakh pay his costs of the appeal in this Court after 31 August 2017, and submits that there should be no order as to the costs of the proceeding before the Federal Circuit Court. The Minister notes that the first to fourth respondents should, of course, retain the benefit of the costs order in their favour made on 15 August 2017. It is implicit in the Minister’s proposal that there would otherwise be no order as to costs in relation to the appeal (that is, apart from a costs order in the Minister’s favour for the period after 31 August 2017, and the costs order in favour of the first to fourth respondents made on 15 August 2017).
(b)Ms Aulakh seeks an order that the Minister pay her costs of the application in the Federal Circuit Court. In relation to the appeal, Ms Aulakh seeks an order that the Minister pay her costs on an indemnity basis, or alternatively on a party-party basis.
For the reasons that follow, and based on the conclusions reached by Tracey and Moshinsky JJ on the Minister’s application for leave to amend, representing the majority opinion on the question, the costs orders proposed by the Minister are appropriate.
Section 43 of the Federal Court of Australia Act 1976 (Cth) provides that the Court has jurisdiction to award costs in all proceedings before it. The Court has an unfettered discretion in how that discretion is exercised, save that it must be exercised judicially: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [9] per Black CJ and French J (as he then was). The ordinary principle is that costs should follow the event: Latoudis v Casey (1990) 170 CLR 534 at 567 per McHugh J.
In the present case, the starting point is that the Minister, as the successful party, would ordinarily be entitled to his costs, both of the appeal and the proceeding at first instance. However, as the submissions on behalf of the Minister recognise, some reduction in those costs is appropriate in the circumstances of this case. The relevant circumstances include that, having regard to the reasons of Tracey and Moshinsky JJ, the Minister succeeded on a contention (paragraph 1(b) of the amended notice of appeal) that had not been raised at first instance. In circumstances where Tracey and Moshinsky JJ did not determine paragraph 1(a) of the amended notice of appeal, it is unclear whether the Minister should have succeeded at first instance on the basis of the arguments he presented at that stage. (It should be noted, however, that on the view of Mortimer J, the Minister should have succeeded on the basis of his original arguments.)
In relation to the costs of the proceeding in the Federal Circuit Court, the proposal put forward by the Minister, namely that there be no order as to costs in relation to that proceeding, is appropriate in circumstances where, on the approach taken by Tracey and Moshinsky JJ, it is unclear whether the Minister should have succeeded at first instance on the basis of the arguments he presented. We do not consider there to be a proper basis to order the Minister to pay Ms Aulakh’s costs of the proceeding in the Federal Circuit Court. There is no conclusion in this Court to the effect that Ms Aulakh should have succeeded at first instance on the basis of the arguments presented by the Minister at that stage; indeed, Mortimer J’s view was that the Minister should have succeeded on the basis of his original arguments.
In relation to the costs of the appeal, the starting point is that the Minister as the successful party is entitled to his costs. There is no question that the costs order made on 15 August 2017 should stand. The Minister seeks his costs for the period after 31 August 2017 (being the date on which he filed his application for leave to amend). It follows that he is not seeking his costs for the period prior to 31 August 2017. We consider this to be appropriate for the reasons discussed in the previous paragraph. It is unclear, on the approach taken by Tracey and Moshinsky JJ, whether the Minister would have succeeded in his appeal on the basis of the notice of appeal as originally formulated. The effect of the Minister’s proposal is that he is not seeking costs for the preparation and filing of the application for leave to amend. This too is appropriate. Taking into account the costs order made in favour of the first to fourth respondents on 15 August 2017, and the matters referred to above, we consider the Minister’s proposal to be appropriate in the circumstances.
We do not consider there to be a proper basis to order the Minister to pay Ms Aulakh’s costs of the appeal, whether on an indemnity basis or a party-party basis. Ms Aulakh relies on “how the Minister ran his case and the consequences for Ms Aulakh”. It is submitted that “Ms Aulakh has been clearly and significantly prejudiced because of the way the Minister chose to run his case”. It is not entirely clear how Ms Aulakh contends she has been prejudiced. The fact that she was required to meet a new argument that had not been raised below did not, in the circumstances of this case, constitute prejudice in the relevant sense. To the extent that additional costs were occasioned by the amendment, or by the failure to raise the argument earlier, we consider these matters to be sufficiently addressed by the Minister’s proposed orders together with the order made on 15 August 2017.
Ms Aulakh also contends that if the Minister had raised the new argument at first instance, she may have run her case differently or discontinued the application. To the extent that these points have merit, we consider that they are sufficiently addressed by the Minister’s proposed orders and the costs order made on 15 August 2017.
For these reasons, we will make orders to the effect that:
(a)There be no order as to costs in relation to the proceeding in the Federal Circuit Court of Australia.
(b)In relation to the appeal to this Court:
(i)Ms Aulakh pay the appellant’s costs incurred after 31 August 2017;
(ii)as ordered on 15 August 2017, the Minister pay the respondents’ costs of the hearing on that day (the reference to the “respondents” to be read as referring to the first to fourth respondents);
(iii)otherwise, there be no order as to costs.
We will also make orders for the payment of these costs by way of a lump sum.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey, Mortimer and Moshinsky. Associate:
Dated: 13 July 2018
SCHEDULE OF PARTIES
VID 376 of 2017 Respondents
Fourth Respondent:
SATINDER SINGH
Fifth Respondent:
ADMINISTRATIVE APPEALS TRIBUNAL
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