BZN19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1216

FedCFamC2G|2025-08-14|Before: Mr P

The application for costs came before me for a hearing on 24 July 2025. Mr Lorenzo Boccabella of Counsel (Mr Boccabella) appeared on behalf of the applicants. Mr Matthew Wong (Mr Wong) and Mr Alvin Sharma (Mr Sharma), solicitors, appeared on behalf of the first respondent.

The Minister relied on the affidavit of Mr Sharma affirmed on 11 July 2025 (Sharma affidavit), which set out the solicitor/client costs incurred by the Minister in the proceedings in the sum of $20,767.25 (excluding GST). The Sharma affidavit also estimated an additional expenditure of $2,375 (excluding GST) in preparing the Sharma affidavit. Further, Counsel's fees in the sum of $4,848.50 (excluding GST) were sought as disbursements and a copy of Counsel's tax invoice was attached.
The Minister contended that on a party/party basis costs in the total sum of $22,205.19 (being solicitors' costs in the sum of $17,356.69 and disbursements of Counsel's fees in the sum of $4,848.50) were sought. The Minister argued that these costs were fair and just for the following reasons:

(a) The applicants' first application dated 16 May 2019 for judicial review (applicants' first application) contained one ground, but twenty-eight particulars were raised. The applicants abandoned most of these particulars. At a late stage in the proceedings the applicants relied on their further amended application dated 3 April 2025. This resulted in the Minister incurring costs in considering the matters set out in the applicants' first application that were largely abandoned.

(b) The Court Books contained approximately 1,100 pages, which the Minister needed to produce in relation to the documents that had been before the Tribunal. The Minister needed to consider these documents.

(c) There were numerous directions hearings in the matter.

(d) The applicants filed four sets of submissions, being submissions dated 18 March 2025, submissions in reply dated 2 April 2025, further submission in reply dated 15 May 2025 and post-hearing submission dated 10 June 2025. The Minister needed to consider these submissions and file the following submissions, being the Minister's outline of submissions dated 19 March 2025, outline of further submissions dated 1 May 2025 and post-hearing submissions dated 18 June 2025.

(e) There were two hearings of the matter which were lengthy, and the second hearing involved Counsel appearing.

In the hearing before me, Mr Boccabella, for the applicants, argued that in essence, the Minister was seeking indemnity costs and there was no need for the Court to go outside the scale and the applicants had made reasonable submissions even though the application was dismissed. Mr Boccabella also referred me to page 6 of the Sharma affidavit, which recorded an item for costs for "reviewing application and IAA decision". Mr Boccabella correctly pointed out that there was no "IAA decision in this matter, as it was a review of the Tribunal's decision". Mr Wong said this was a typo, which I accept.

I accept that the work undertaken by the Minister is such that it is fair and just to fix costs in the amount of $18,200, which includes $4,848.50 as disbursements paid to Counsel. This is particularly in light of the fact that the applicants amended their application very late in the proceedings to abandon a large part of their case, and that the hearing took place effectively over two days and involved Counsel.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.

Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

Circuit and Family Court of Australia Act 2021

Part 2 of Schedule 2 to the GFL Rules contains what is commonly referred to as the Court's 'scale' in relation to migration proceedings. Under Division 1, Item 3 it states that where a proceeding has been concluded at a final hearing, the scale amount is $8,371.30.
The usual rule is that costs will be awarded to the successful party in the absence of special circumstances justifying some other order: Richards v Han (Costs) [2023] FCA 211 at [9] per Halley J. In that decision, his Honour said (emphasis added):

In the ordinary course, in the absence of special circumstances justifying some other order, the general rule is that costs will be awarded to the successful party, that is, costs will follow the event: Summers at [14] citing Ritter v Godfrey [1920] 2 KB 47 at 52-53 (Lord Sterndale MR) and 54 (Atkin LK); Gladstone Park Shopping Centre Pty Ltd v Ross Willis [1984] FCA 166; (1984) 6 FCR 496 at 505 (Davies J); Ruddock v Vadarlis (No 2) (2001) 115 FCR 229; [2001] FCA 1865 at [11] (Black CJ and French J).

The Federal Circuit and Family Court of Australia has a broad discretion whether to make a fixed sum costs order: BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 at [29], per Griffiths J. Fixed costs orders are frequently made by this Court, particularly in migration matters: ENY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 658 at [40] per Laing J.
In Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129, the Full Federal Court (Mortimer CJ, Colvin and Dowling JJ) at [94] made clear that "the question for the Court is, in the particular circumstances proven before it, what is a fair and just amount to fix for the costs of a successful party".

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