Younas v Commonwealth of Australia (Costs)
[2024] FCA 1007
•2 September 2024
FEDERAL COURT OF AUSTRALIA
Younas v Commonwealth of Australia (Costs) [2024] FCA 1007
File numbers: VID 698 of 2023 Judgment of: WHEELAHAN J Date of judgment: 2 September 2024 Catchwords: COSTS — where an unsuccessful applicant sought for the respondent’s costs of two abortive hearing days to be excluded from the costs otherwise payable to the respondent – where the hearing days were adjourned because of difficulties in securing an interpreter, which were not the fault of either party – there was no disentitling conduct on the respondent’s part – costs of the two hearing days not excluded from the general order that costs follow the event. Legislation: Federal Proceedings (Costs) Act 1981 (Cth) s 10 Cases cited: Shout Rock Cafes Pty Ltd v City of Port Phillip (Costs Ruling) [2023] VSC 23 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 9 Date of last submissions: 16 August 2024 Date of hearing: Determined on the papers Counsel for the Applicant: Mr M Guo Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the Respondent: Mr NM Wood SC Solicitor for the Respondent: Australian Government Solicitor ORDERS
VID 698 of 2023 BETWEEN: HAMZA YOUNAS
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
ORDER MADE BY:
WHEELAHAN J
DATE OF ORDER:
2 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHEELAHAN J:
On 2 August 2024, I dismissed the applicant’s application for a declaration that he is an Australian citizen. Upon hearing counsel for the parties, I made directions for the filing of written submissions as to costs, and for the question of costs to be determined on the papers.
Ordinarily, and absent some disentitling feature, the appropriate exercise of the Court’s discretion as to costs is that costs should follow the event. However, the applicant submits that there are some special features of the present case which should lead the Court to exercise its discretion to exclude the respondent’s costs of 27 March 2024 and 12 April 2024, from what would otherwise be the usual order that costs follow the event.
It was a characteristic of the hearing of this proceeding that difficulties were encountered in securing an interpreter for the purposes of the giving of evidence. On the second day of the hearing, 27 March 2024, the applicant was not successful in securing the attendance of an interpreter for the purposes of the evidence of Mohammed Shahid, whose credit was in issue, and where the Court considered that the attendance of an interpreter in court was desirable. Neither of the parties submitted that securing the attendance of an interpreter was not desirable. As a result of the inability to secure an interpreter, the proceeding had to be adjourned until the next suitable date after Easter, which was 8 April 2024.
A further difficulty in securing an interpreter occurred on the afternoon of 11 April 2024, when Mohammed Shahid was due to be re-examined. A request had been made for an interpreter to attend court in person, but this had been misunderstood as involving an online attendance. As a result, the re-examination of Mohammed Shahid was delayed, initially until the following day, 12 April 2024. However, an interpreter was unable to be secured for 12 April 2024, and on that day, which was a Friday, the matter had to be adjourned until Monday 22 April 2024.
The difficulties experienced in interpreters cancelling, misunderstanding the nature of the booking, and the general difficulties encountered in securing an interpreter appeared to me to be the fault of no party, and I stated so during the course of the hearing. Indeed, the difficulties encountered in securing the attendance of an interpreter were difficulties that I had not seen before.
Section 10 of the Federal Proceedings (Costs) Act 1981 (Cth) enables the Court to grant to a party a costs certificate in respect of proceedings that are rendered abortive by reason of the circumstances referred to in s 10(2). There is no suggestion that there is any basis for the Court to grant a costs certificate in the present proceeding, and no application has been made. Rather, the applicant submits that s 10 is a statutory recognition that parties should not have to bear costs associated with the inability of a matter to proceed, and that this is a broadly analogous situation in which the Court should exercise its discretion as to costs so as to relieve the applicant from any liability for costs in respect of the two days in which the hearing could not proceed. However, it should be noted that the Federal Proceedings (Costs) Act is concerned with a statutory indemnity for costs, and not with primary orders for costs.
In support of the submission that the applicant should not bear the respondent’s costs of the two days on which an interpreter could not be secured, counsel for the applicant cited Shout Rock Cafes Pty Ltd v City of Port Phillip (Costs Ruling) [2023] VSC 23. In that case, an application for judicial review had to be adjourned on two occasions. On the first occasion, it was adjourned because the plaintiff sought to amend its grounds of review. On the second occasion, the matter was adjourned because the plaintiff’s counsel was unwell and unable to appear. The first defendant, which had been unsuccessful in the proceeding, submitted to the judge that it should not have to pay the plaintiff’s costs on either of those days. The judge concluded that the plaintiff’s costs of both days should be excluded from the plaintiff’s costs of the proceeding which the first defendant was otherwise ordered to pay.
It is difficult to see that the decision in Shout Rock CafesPty Ltd stands for, still less illustrates, any principle that might be applicable to the present case. As I have said, I am satisfied that it was not the fault of either party that two days of hearing could not proceed because of the inability to secure an interpreter. It follows that there has been no disentitling conduct of the respondent. As for the applicant’s position, the additional costs are simply one of the risks of litigation.
For the foregoing reasons, there is no reason to depart from the usual principle that costs should follow the event in respect of the respondent’s costs incurred for the hearing days of 27 March 2024 and 12 April 2024. The quantum of those costs is a matter for taxation in default of agreement.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan. Associate:
Dated: 2 September 2024
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