BWP18 v Minister for Immigration, Citizenship and Multicultural Affairs

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On 20 December 2023, I delivered judgment in these proceedings: BWP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1217 (Judgment). I made orders dismissing the applicant's Application for Review of a Registrar's decision filed 5 December 2023 and a further order that the applicant pay the first respondent's costs in an amount to be fixed if not agreed (Costs Order). These reasons are to be read in conjunction with the Judgment.

1. On 24 April 2024, the Court received email correspondence from the first respondent (Minister) attaching a letter seeking costs (Costs Letter). The Costs Letter indicated that the Minister sought costs fixed in the sum of $2,435.81 and that this amount "is a sum reflective of the Court's scale cost for a short mention hearing (being items 3 and 9(a) of Part 1 of Schedule 2, less than the scale amount for an interlocutory hearing found in item 2 of Division 1 Part 2 of Schedule 2)" (Costs Application).
2. On 3 May 2024, orders were made from Chambers for the Minister to file an affidavit identifying the steps it had undertaken to seek agreement from the applicant with respect to the Costs Order, and for the applicant to file any affidavit or material in response to the Costs Application (May Orders). The Court noted that the matter would be determined on the papers unless either party requested to be heard.
3. On 15 May 2024, the Minister filed an affidavit deposing to the attempts made by the Minister to seek agreement from the applicant with respect to the Costs Order. The affidavit of the Minister evidences the following attempts to communicate with the applicant:

(1) On 12 January 2024, the Minister emailed the applicant at the email address provided on the applicant's Application in a Proceeding filed on 20 September 2023 and the applicant's application for an extension of time and leave to appeal filed with the Federal Court of Australia on 7 February 2024 (proceeding VID100/2024), being the email address (Primary Email Address):

(i) a letter dated 12 January 2024 seeking the applicant's agreement to pay costs fixed in the sum of $2,435.81 to satisfy the Costs Order; and

(ii) an unsigned and undated undertaking in the name of the applicant to pay $2,435.81 to satisfy the Costs Order.

(b) On 10 May 2024, the Minister emailed the applicant at the Primary Email Address and to the email address provided on the applicant's Application for Review of a Registrar's decision filed 5 December 2023, being the email address (Secondary Email Address) a copy of the May Orders.

(c) On 12 May 2024, the Minister deposed to also posting to the applicant a copy of the email and letter dated 10 May 2024 and a copy of the May Orders.

1. The Court received no request from either party to be heard further on the matter of costs and there has been no further correspondence from the applicant. Accordingly, the Costs Application will be determined on the papers.
2. As stated above, the Minister is seeking costs fixed in the sum of $2,435.81 pursuant to the scale contained in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules). The Minister submits that this amount is reflective of the Court's scale cost for a short mention hearing pursuant to items 3 and 9(a) of pt 1 sch 2 of the 2021 Rules, less than the scale amount for an interlocutory hearing pursuant to item 2 of div 1 pt 2 of sch 2 of the 2021 Rules.

1. The Court has a wide discretion to award costs orders pursuant to s 214(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).
2. Sections 214(2) and (3) of the FCFCOA Act provide the following:

(2) The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.

(3) Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit and Family Court of Australia (Division 2) or Judge.

1. The Court therefore has an unfettered discretion to award costs, subject to the rules of court, and any modification of that jurisdiction by particular legislation: Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129 at [24] per Mortimer CJ, Colvin and Dowling JJ.
2. Pursuant to r 29.13(1) of the 2021 Rules, in migration proceedings the Court may order an unsuccessful party to the proceeding to pay the costs of the successful party in accordance with the event-based scale at Division 1 of pt 2 of sch 2.
3. Division 22.2 of the 2021 Rules, which applied at the time of the Costs Application, provided a number of options to the Court in the exercise of its discretion under s 214(3) of the FCFCOA Act. Relevantly, at r 22.02, that an application for costs may be made within a time allowed by the Court and, in making an order for costs in a proceeding, the Court may:

(a) set the amount of the costs; or

(b) set the method by which the costs are to be calculated; or

(c) refer the costs for taxation under pt 40 of the Federal Court Rules 2011 (Cth); or

(d) set a time for the payment of the costs, which may be before the proceeding is concluded.

1. Schedule 2 of the 2021 Rules provides an event-based scale as a relevant benchmark and guide for the Court to take into account.
2. The Minister seeks costs pursuant to items 3 and 9(a) of pt 1 of sch 2 of the 2021 Rules which relevantly provide:

Costs for general federal law proceedings other than migration proceedings

Note: This stage applies to an interim application or a summary proceeding of a type not otherwise addressed in this fee structure. It does not include the item 1 or 2 component.

(b) the daily hearing fee mentioned in item 9 that applies to the hearing

1. Part 1 of sch 2 of the 2021 Rules provides for the costs for general federal law proceedings other than migration proceedings.
2. Part 2 of sch 2 of the 2021 Rules provides for the costs of migration proceedings that have concluded and includes the following:

Costs for migration proceedings that have concluded

A proceeding concluded at or before the first court date for the proceeding

(a) after the first court date for the proceeding; and

1. The usual course is that costs follow the event, meaning that a successful party is generally entitled to an award of costs in their favour.
2. In BWP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1217 I found that none of the applicant's claims were reasonably arguable and that the Application for Review of a Registrar's decision be dismissed.
3. I see no reason why in the present circumstances costs should not follow the event.
4. I note that the Minister seeks costs pursuant to pt 1 of sch 2 of the 2021 Rules which provides the costs scale for general federal law proceedings other than migration proceedings. The amount sought by the Minister is below the scale provided for in both pt 1 and pt 2 of sch 2 of the 2021 Rules. In those circumstances I am satisfied that it is appropriate to make an order for payment of the amount sought by the Minister having regard to the scale as set out above.

1. For the above reasons, I will order that the applicant pay the Minister's costs fixed in the amount of $2,435.81.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.