BKW17 v Minister for Immigration, Citizenship and Multicultural Affairs

1. The applicants' litigation representative, being BYI18, pay 50% of the first respondent's costs of the proceedings in an amount as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The Full Court delivered its substantive reasons for judgment in these matters on 20 January 2023: BKW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 1. The Full Court sought submissions on costs. The Full Court stated in its reasons for judgment at [45] that "[t]he Minister's costs should be paid." 2 The Minister contends that the applicants' fathers, as litigation guardians, should pay the Minister's costs. 3 The applicants (in proceeding NSD2002/2019 (proceeding 17), the two youngest, minor daughters, and in proceeding NSD59/2020 (proceeding 18), the minor son and daughter) do not dispute this, but submit that the Minister's costs should be reduced by 50% due to an "unexplained failure" on the part of the Minister to provide ESP interviews. 4 There are difficulties with both submissions. The case was conducted by the applicants on the basis that there was no litigation guardian appointed in the earlier Federal Court and High Court proceedings. The applicants' solicitor, Mr Taylor, put those submissions and it can be inferred that the fathers believed themselves not to be acting as litigation guardians. One daughter in proceeding 17 was a teenager (short of her majority) while instructions were being given for this Federal Court proceeding. The youngest daughter in proceeding 17 and the son and daughter in proceeding 18 were young children at this time. One could perhaps assume that Mr Taylor obtained instructions from the family and in all likelihood the parents, including the two fathers. There is no evidence one way or the other about who gave instructions. The fathers were respondents to the applications. Secondly, at no time did the Minister press this costs question or make it clear that he would press for costs from the fathers if successful. Thirdly, the so-called unexplained failure was the subject of excessive submissions by Mr Taylor and does not justify a halving of the costs. 5 Nonetheless, it can only be assumed that Mr Taylor must have recognised the possibility that he may be wrong in the argument and, given the age of the applicants, must have raised the possibility of the fathers' liability for costs in light of the (well-known) purpose of an order for the appointment of a litigation representative: see Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 at [18]. 6 We consider that, in the circumstances, the Court should make an order for costs against the applicants' litigation guardians, being the fathers. However, we are also of the view that the order for payment of the Minister's costs should be reduced by 50%. The order for reduction in costs is appropriate, not for the reasons adverted to in the applicants' submissions, but rather because of the importance of the question raised in these proceedings to the administration of migration matters in the Federal Circuit and Family Court, the Federal Court and the High Court, and the broader public interest at large in such a question being litigated. 7 We consider that Mr Taylor's approach to the argument and conduct of the matter undoubtedly increased the costs incurred by the parties. Notwithstanding this, the arguments thrown up did ventilate and resolve an important question of practice and the Minister does not seek any costs from Mr Taylor. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop and Justices Burley and O'Callaghan.