Minister for Immigration and Border Protection v BBS16 (No 2)
[2017] FCAFC 199
•29 November 2017
FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Border Protection v BBS16 (No 2)
[2017] FCAFC 199
Appeal from: BBS16 v Minister for Immigration & Anor [2017] FCCA 4 File number: NSD 242 of 2017 Judges: KENNY, TRACEY AND GRIFFITHS J Date of judgment: 29 November 2017 Catchwords: COSTS – appropriate order as to costs of appeal and proceedings below Legislation: Federal Court of Australia Act 1976 (Cth) s 43 Cases cited: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Re Wilcox; ex parte Venture Industries Pty Ltd [1996] FCA 1132; 141 ALR 727
Date of hearing: Heard on the papers Date of last submissions: 24 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 9 Counsel for the Appellant: Mr G Johnson SC & Mr BD Kaplan Solicitor for the Appellant: DLA Piper Australia Counsel for the First Respondent: Mr DA Hughes & Ms JPS Ambikapathy Solicitor for the First Respondent: D’Ambra Murphy Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 242 of 2017 BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Appellant
AND: BBS16
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
KENNY, TRACEY AND GRIFFITHS J
DATE OF ORDER:
29 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Grounds 1 and 3 of the notice of contention be allowed.
3.The notice of contention otherwise be dismissed.
4.The orders made by the Federal Circuit Court of Australia on 1 February 2017 be set aside and, in substitution, the following orders be made:
(a)A writ of certiorari issue to the second respondent quashing its decision dated 11 April 2016.
(b)A writ of mandamus issue requiring the second respondent to determine the review of the fast track reviewable decision referred to it according to law.
(c)The appellant pay the first respondent’s costs of the proceedings in the Federal Circuit Court of Australia in the sum of $3,412.50.
5.There be no order as to costs in respect of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
On 10 November 2017 the Court published its reasons for judgment in this matter (Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (BBS16 (No 1)). Orders were made then in the following terms:
1. The appeal be allowed.
2. The notice of contention be upheld in part.
3.Within 14 days hereof, the parties are to seek to agree orders, including as to costs, which give effect to these reasons for judgment. If they are unable to agree, within that time each should file and serve a brief outline of written submissions, not to exceed five pages in length, setting out the orders for which they contend and why.
4.Final orders, including as to costs will be made on the papers and without another oral hearing.
The parties were unable to agree orders in accordance with order 3 and each has filed brief written submissions in support of their respective positions. As noted above, the Court ordered that it would determine final orders based on the papers and without a further hearing. These are the reasons for the final orders.
As might be expected, there was no disagreement between the parties on the broad discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth). The general principles which guide the exercise of the judicial discretion are described in many cases, including Re Wilcox; ex parte Venture Industries Pty Ltd [1996] FCA 1132; 141 ALR 727 at 732-733 per Cooper and Merkel JJ.
The Minister submitted that this was an appropriate case to order that each party bear its own costs. That is because the Minister succeeded in both his grounds of the appeal and the first respondent succeeded on two of the three grounds in its notice of contention. The Minister submitted that a not insubstantial amount of time and resources was devoted to ground 2 of the notice of contention, on which the first respondent failed.
As to costs below, the Minister submitted that he should not have to bear all the costs of the first respondent in the proceedings before the primary judge in circumstances where the primary judge had correctly rejected the first respondent’s case in respect of what became ground 2 in the notice of contention and the third ground in the notice of contention was not raised below. The Minister submitted that it was appropriate to order him to pay 50 percent of the first respondent’s costs below. The orders dated 1 February 2017 in the Federal Circuit Court of Australia included an order that the Minister pay a lump sum cost order in the amount of $6,825.00. Fifty percent of that amount is $3,412.50.
The first respondent submitted that the two grounds on which the Minister succeeded did not significantly add to the duration of the hearing nor to the costs of the appeal. He added that it was open and proper for him to resist those grounds, even though both grounds were upheld.
Among other matters raised by the first respondent is a submission that it was relevant in assessing costs of the appeal to take into account the Minister’s “misconduct in the carriage of the appeal”. This is a reference to the fact that, despite s 91X of the Migration Act 1958 (Cth), the Minister had disclosed the name of the first respondent on the appeal papers, which required the Court to make a non-publication order.
Having considered the parties’ submissions, the Court considers that the orders proposed by the Minister are the appropriate orders to make, substantially for the reasons set out in the Minister’s outline of submissions dated 24 November 2017 as summarised above. We reject the first respondent’s submission that there was “misconduct” on the part of the Minister. It is unfortunate that the first respondent’s name appeared on the appeal papers as prepared by the Minister’s legal representatives, but such conduct could not be described as “misconduct”, nor provide a basis for penalising the Minister on costs.
Conclusion
For the reasons given above, and substantially incorporating orders 1 and 2 made by this Court on 10 November 2017, the final orders are as follows:
(1)The appeal be allowed.
(2)Grounds 1 and 3 of the notice of contention be allowed.
(3)The notice of contention otherwise be dismissed.
(4)The orders made by the Federal Circuit Court of Australia on 1 February 2017 be set aside and, in substitution, the following orders be made:
(a)A writ of certiorari issue to the second respondent quashing its decision dated 11 April 2016.
(b)A writ of mandamus issue requiring the second respondent to determine the review of the fast track reviewable decision referred to it according to law.
(c)The appellant pay the first respondent’s costs of the proceedings in the Federal Circuit Court of Australia in the sum of $3,412.50.
(5)There be no order as to costs in respect of the appeal.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Tracey and Griffiths. Associate:
Dated: 29 November 2017
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