Tukala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Costs)

In the matter of Tukala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Costs), the Federal Court of Australia addressed two significant issues. The first issue pertains to the determination of costs under section 486F of the Migration Act 1958 (Cth), where the court ordered the non-lawyer who prepared and argued the application for judicial review to pay the Minister’s costs. The second issue concerns an application for an extension of time to appeal this adverse costs order.

The legal issues before the court were whether there was any arguable error in the primary judge's order that the Minister’s costs be paid by the non-lawyer, and whether the delay in filing the application for an extension of time should be excused, despite there being no significant prejudice to the respondents. The court found that the arguments made in support of the costs order were not substantiated and that the appeal against the costs order had no reasonable prospects of success. Furthermore, while the delay in filing the extension of time application was not trivial and lacked explanation, it did not result in any prejudice to the respondents.

In its reasoning, the court noted that the grounds of appeal did not adequately address the basis for disturbing the primary judge's orders, and there was insufficient evidence to suggest that the primary judge erred in their determination. Consequently, the appeal against the costs order was deemed to have no reasonable prospects of success. Additionally, although the delay in the application for an extension of time was not insubstantial, the court found that there was no prejudice caused to the respondents, leading to the dismissal of the application for an extension of time. The court emphasised that costs should follow the event.

The orders of the court mandated that the application for an extension of time to appeal, filed on 19 October 2022, be dismissed and that Vangu Kitoko pay the first respondent’s costs of the application. The entry of these orders is governed by Rule 39.32 of the Federal Court Rules 2011.