BHM15 v Minister for Immigration and Border Protection

THE COURT ORDERS THAT:

1. There be no further orders. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC J: 1 On 19 June 2018 I made orders allowing the appellants' appeal: see BHM15 v Minister for Immigration and Border Protection [2018] FCA 917. 2 Although in their notice of appeal the appellants sought their costs of the proceeding before the primary judge, no submissions were made by either party at the hearing about that proposed order. Accordingly, I made an order that the parties file and serve written submissions in relation to the order made by the Federal Circuit Court of Australia (Federal Circuit Court) on 4 December 2017 that the applicants in that court, who were the appellants in the proceeding before me, pay the first respondent's (Minister) costs (FCC Costs Order) and the issue of the costs of that proceeding and indicate whether that issue could be determined on the papers. 3 On 29 June 2018 the Minister filed submissions in response to that order and indicated that he was content for the issue to be determined on the papers. On 16 July 2018, following an order made extending the time by which the appellants could file their submissions, the solicitor for the appellants informed the Court that the appellants did not seek to make any submissions in relation to the FCC Costs Order. 4 In my opinion, for the reasons that follow, the FCC Costs Order should not be disturbed. 5 First, the appellants have elected not to make any submission about the FCC Costs Order despite being invited to do so. I infer from that that they do not seek to disturb that order. 6 Secondly, and in any event, in the exercise of my discretion conferred by s 43(2) of the Federal Court of Australia Act 1976 (Cth) I would decline to set aside the FCC Costs Order and/or make any alternate order for the following reasons: (1) none of the grounds raised below, which the appellants described as "prolix and unfocussed" in their written submissions relied on in this Court, or findings made by the primary judge, were in issue on appeal; (2) the ground on which the appellant succeeded on appeal was not raised before the Federal Circuit Court, but was raised for the first time on appeal in this Court. There was no overlap in the grounds raised before the primary judge and the successful ground on appeal; (3) the appellants were represented in the Federal Circuit Court: cf AJQ16 v Minister for Immigration and Border Protection (No 2) [2018] FCA 389 (AJQ 16) where the appellants who succeeded on appeal on a ground not raised before the primary judge were not legally represented before the primary judge; and (4) given that the appellants were represented in the Federal Circuit Court and, despite that, conceded that the grounds raised below were "prolix and unfocussed" and given those grounds in fact bore no resemblance to the ground on which the appellant succeeded, the FCC Costs Order should not be disturbed. 7 Accordingly, I do not propose to make any further orders. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.