BUG15 v Minister for Immigration and Border Protection

1. Order 2 of the orders made on 11 May 2018 be vacated. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 On 11 May 2018, I made orders dismissing the appeal brought by the appellant. The appellant is a child. The child's mother was made litigation representative in the Federal Circuit Court of Australia and in the Federal Court of Australia. I sought submissions as to the appropriateness of the order for costs being made against the mother in the Federal Circuit Court in circumstances where it would appear that she was not made aware of the cost consequences that would flow from her position as litigation representative or litigation guardian. I was also concerned that in the copy of the judgment of the Court below the orders were made initially that the application be dismissed and yet later there was filed forms of order providing for the costs to be paid by the mother. In these circumstances, I ordered that the Minister file an affidavit as to the circumstances of the appointment of the mother as guardian in the Court below and a submission on the question of setting aside the costs order in the Court below if the mother had not been informed of her personal liability as to costs. 2 An affidavit was filed by Mr Keevers, a solicitor from Sparke Helmore who are the solicitors for the first respondent. I make no criticism of Mr Keevers. He deposes to his usual practice in dealing with the matter and the making of short minutes of order before a Registrar to prepare the matter for hearing. In those orders the mother was appointed litigation guardian for the appellant. It does not appear that the mother was informed of the costs consequences of her being a litigation guardian. 3 It would not appear to be the practice for the Registrar to explain to a person in the mother's position that she will be personally liable for costs as if she were a litigant, if the appeal fails. 4 The responsibility of a litigation guardian for costs is one of the reasons for the appointment: see Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 113. But that is not the only reason. Without the guardian the child is unable to prosecute the litigation. As stated in Dey 78 CLR at 113, the appointment of a litigation guardian or representative is: … principally to institute and carry on the proceedings on behalf of the infant because the law considers that an infant is incapable of asserting or protecting his [or her] rights or forming a judgment as to the necessity of applying for protection or redress to the tribunals of the country. 5 It can be accepted that the mother was probably aware that costs consequences might flow from unsuccessful litigation and she had previously brought proceedings in the Federal Circuit Court which were unsuccessful and in respect of which she was the subject of an adverse costs order: SZSEA v Minister for Immigration and Citizenship [2013] FCCA 407. 6 In the circumstances I am not prepared to conclude that the order for costs was made erroneously. As a matter of practice, the nature of the litigation guardianship (and the exposure to costs) ought be explained to a litigant in person in terms reflective of Dey 78 CLR at 113. Of course, if the litigation guardian is not prepared to expose him or herself to costs, it may be that the child's litigation must be struck out. 7 In the circumstances where the appellant's mother was not informed of her position prior to undertaking the review application and this appeal, while I do not think it appropriate to set aside the orders for costs in the Circuit Court, I am not prepared to make an order for costs on the appeal. 8 The order that I make is as follows: