AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs

1. On 22 October 2024 I made orders allowing the appellant's appeal and reserved the question of the costs for both the appeal and the proceeding below in the Federal Circuit and Family Court of Australia (Division 2): AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 1223.
2. The appellant and the Minister both filed submissions on the issue of costs. The Minister relies on an affidavit of Madisen Anne Scott affirmed 12 June 2024. The appellant relies on an affidavit of Daniel Robert Taylor affirmed 13 November 2024. Each of these affidavits depose facts relating to the conduct of the proceeding before the primary judge.
3. Having considered the written submissions and affidavits, I am satisfied that it is appropriate to deal with the question of costs without an oral hearing on the ground that determination of the matter would not be aided significantly by an oral hearing because there is no real issue of fact relevant to determination of the matter and the legal arguments in relation to the matter have been dealt with adequately by written submissions: s 20A(2)(c) of the Federal Court of Australia Act 1976 (Cth).
4. The Court has an absolute and unfettered discretionary power to award costs under s 43 of the Federal Court Act. But, like all discretions, it must be exercised judicially and not against the successful party except for some reason connected with the case. In practice, the exercise of discretion is guided by well-established principles. In Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 Black CJ and French J said (citations omitted):
   1. Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that:

• Ÿ Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order.
• Ÿ Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed.
• Ÿ A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law.

1. Usually, the circumstances in which a successful party is denied all or part of its costs have to do with its conduct of the proceeding. Costs may be refused where the applicant has made an exaggerated claim which has occupied a significant proportion of the proceedings and has only succeeded on a minor aspect of the original claim. Costs may be apportioned according to success or failure on particular distinct or severable issues. Courts may award only a proportion of the successful party's costs if the conduct of that party was such as to unreasonably prolong the proceeding. The same principles apply to the award of costs on an appeal: Ruddock v Vadarlis (No 2) at [15]-[16].
2. It was common ground that there should be an order that the Minister pay the appellant's costs of the appeal. Therefore, the only point of difference between the parties concerned the costs of the proceeding in the Federal Circuit Court. The appellant submits he should have the costs of that proceeding as agreed or taxed, or alternatively, fixed in the amount of $8,371.30. The Minister submits that he should have 90% of the costs of that proceeding up to and including 3 October 2023, fixed in the amount of $11,500, and that he should pay the appellant's costs from 4 October 2023.
3. In my view, the appellant's conduct of the proceeding before the primary judge and in the appeal had the effect of unnecessarily prolonging and complicating each proceeding resulting in costs that were disproportionate to the importance and complexity of the matters in dispute. For that reason, I do not consider that it would be just for the Minster to bear the burden of all the costs of the proceeding below and the appeal. The ground of appeal upon which the appellant ultimately succeeded was a ground that was largely formulated by the Court and it only really emerged with any clarity in the course of the appellant's oral submissions on the appeal and even then without great intelligibility. The Court was not greatly assisted by the appellant's various versions of his grounds of appeal or written and oral submissions. These were prolix, unclear and confusing. Similar observations may be made about the various versions of the appellant's grounds of review advanced in the primary court. As a consequence, it is virtually impossible to identify and categorise the appellant's success and failure on distinct or separate issues. In my view, it is preferrable to take a broad-brush approach to the costs in the primary court and in the appeal. Taking that approach, I will order the Minister to pay the appellant's costs of the appeal, but that there be no order as to the costs of the proceeding in the primary court. That order reflects the overall mixed success of the appellant in both proceedings and that his conduct unnecessarily prolonged and complicated them.

1. On 16 February 2023 the Immigration Assessment Authority affirmed a decision not to grant the appellant a Safe Haven Enterprise (Class XE) (Subclass 790) visa. On 23 February 2023 the appellant filed an originating application seeking to review the Authority's decision in the Federal Circuit Court. The initial application contained seven grounds of review.
2. On 12 June 2023 the appellant filed an amended originating application containing eight grounds of review, adding an additional ground of review and amending various particulars to existing grounds. On 11 August 2023 the appellant filed a further amended originating application containing eight grounds of review, which introduced five new grounds and deleted a number of existing grounds.
3. By 28 August 2023 the appellant and the Minister had filed submissions addressing the eight grounds of review contained in the further amended originating application. The hearing of the originating application was listed on 30 August 2023 but was vacated as a result of judicial unavailability.
4. On 21 September 2023 the appellant filed an affidavit attaching a document purporting to be the second proposed further amended originating application. That document contained three grounds of review, abandoning most of the grounds raised in the further amended originating application.
5. On 3 October 2023 the appellant filed a further affidavit annexing a document purporting to be a third proposed further amended originating application. That document contained four grounds of review, introducing a new ground of review and adding particulars to existing grounds. That document introduced ground 2A and amended ground 2 (as it was labelled in the second and third proposed further amended originating application).
6. On 29 October 2023 the appellant filed a document purporting to be a fourth proposed further amended originating application. That document added a significant number of particulars to ground 2 of the application.
7. On 23 November 2023 the primary judge dismissed the originating application, as amended, and ordered that the applicant pay the Minister's costs of and incidental to the application, fixed in the sum of $17,000.
8. In the primary judge's reasons for decision on his costs judgment (AAI20 v Minister for Immigration, Citizenship & Multicultural Affairs (No 2) [2023] FedCFamC2G 1240) he said:
   1. This case was a difficult matter, and it involved quite a deal of complexity; the fact that I had it reserved for 10 days is testament to that. It was a matter where the Court Book was some 1500 pages. The actual hearing took five hours from 11 o'clock Brisbane time until 4 o'clock Brisbane time without any breaks.
   2. From the time in which the matter came before the Court, there had been three amendments of the grounds. Those amendments occurring on 12 June 2023, 11 August 2023 and 29 October 2023. Those amendments were the subject of submissions which the Minister answered in submissions. Once answered, the irrefutable logic of those answers ultimately led to the applicant abandoning those grounds. The applicant then amended his grounds again and the cycle repeated itself.
   3. The grounds upon which the application was conducted, really, were quite different from the grounds that were contemplated when the application was first filed. It does seem to me, in all of those circumstances, that the sorts of special considerations that would militate towards the Court disregarding the scale amount and looking at a cost figure have been met.
9. Those observations are generally consistent with the affidavit material upon which the parties rely on the question of costs. However, the grounds upon which the appellant ultimately succeeded in the appeal were a feature of all versions of the grounds of review filed in the primary court and, therefore, the observation about conducting the application on different grounds to those contemplated when the application was filed must be read and understood in that context.

1. On 24 November 2023 the appellant filed a notice of appeal from the Federal Circuit Court's judgment. As explained in AAI20 (No 2) (FCA) at [31], the appellant by his written submissions filed 24 April 2024 sought to abandon grounds 1, 2 and 4 of his notice of appeal and sought leave to amend ground 3 of the appeal in terms of a draft amended notice of appeal attached to his submissions.
2. On 10 May 2024, after the oral hearing, the appellant filed an interlocutory application by which he formally applied for leave to amend his notice of appeal in terms of a minute attached to that application. However, the minute was not entirely consistent with the proposed ground identified before the oral hearing and contained two additional proposed particulars. The appellant also sought leave to reopen the appeal and to rely on further affidavit evidence and submissions if the appeal were reopened. On 18 June 2024 orders were made dismissing the application for leave to reopen and standing over the application for leave to amend the grounds of appeal. Orders were also made to the effect the appellant pay the Minister's costs of the application to reopen fixed in the sum of $3,000 and reserving the costs of the application to amend: AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 707.
3. For the reasons given in AAI20 (No 2) (FCA), I did not grant leave for the appellant to amend his notice of appeal in the terms proposed and, instead, granted leave for the appellant to amend in terms of a ground of appeal set out in my reasons for judgment. That ground reflected the case the appellant had argued in the appeal. The particulars to that ground set out the substance of one ground of the last version of the originating application he had advanced in the Federal Circuit Court: AAI20 (No 2) (FCA) at [33]-[37]. Therefore, the appellant was ultimately successful on the substance of one of the grounds he had advanced in the Federal Circuit Court.

1. While the Minister concedes that he should pay the costs of the appeal, in my view, the manner in which the appellant conducted the appeal, in particular the unorthodox manner in which the grounds were originally expressed and confusing nature of the appellant's written and oral submissions, inevitably would have had the effect of increasing the time taken to deal with the appeal and, no doubt, the Minister's costs in the appeal. In my view, part of the Minister's costs were incurred unnecessarily and were wasted. Further, having regard to the evidence about the manner in which the appellant conducted the proceeding in the Federal Circuit Court, it is evident that his conduct of those proceedings also resulted in the Minister incurring unnecessary and wasted costs in dealing with and addressing grounds and issues that were abandoned or, otherwise, pursued in a substantially different guise.
2. The parties to a civil proceeding before the Court must conduct the proceeding in a way that is consistent with the overarching purpose of the civil practice and procedure provisions. That purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. It includes resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. A party's lawyer must, in the conduct of a civil proceeding before the Court on the party's behalf, take account of the duty imposed on the party and assist the party to comply with the duty. In exercising the discretion to award costs in a civil proceeding, the Court or a Judge must take account of any failure to comply with the duty imposed on the party and the party's lawyer: s 37M and s 37N of the Federal Court Act.
3. A notice of appeal must state briefly but specifically the grounds relied upon in support of the appeal. That is the basic function of a notice of appeal. None of the versions of the grounds of appeal filed in this appeal fulfilled that basic function. As has already been mentioned, the various versions of the notice of appeal were prolix, unclear and confusing. As the reasons in AAI20 (No 2) (FCA) reveal, the principle issues in the appeal were not complex and concerned a relatively straightforward analysis of established legal principles applied to the Authority's reasons and aspects of the evidence before the Authority. Accepting that amendment of grounds of review and appeal is a common feature of civil proceedings as parties refine their cases and arguments for hearing, the number and nature of the versions of the grounds of review and appeal is well outside the scope of what might be considered an ordinary process of amendment and refinement in a case of this nature. In my view, the appellant has not conducted this appeal consistently with the overarching purpose of the civil practice and procedure provisions. The appellant's conduct of the appeal has had the inevitable result of the Minister incurring costs that are disproportionate to the importance and complexity of the matters in dispute.

1. While it is appropriate that costs should follow the event, the appellant's conduct of the appeal and proceeding below was of the kind that renders it inappropriate and unjust to award him all the costs of the appeal and the proceeding below. In the circumstances of this case, I consider it appropriate to adopt a broad-brush rather than mathematically precise approach apportionment of those costs in the exercise of the discretion. Taking into account the Minister's concession, that the appellant's conduct unnecessarily increased the costs of the appeal, and the manner in which the appellant conducted the proceeding below unnecessarily increased the costs of that proceeding, the appropriate order is that the Minister pay the appellant's costs of the appeal, but there be no orders as to the costs of the proceeding below or of the costs of the application to amend the appellant's notice of appeal.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.