CED16 v Minister for Immigration and Border Protection

Costs before the Federal Circuit Court 5 The main dispute between the parties concerns the order for costs of the proceedings before the Federal Circuit Court. 6 The successful appellant argued that costs ought follow the event and, given his success in setting aside the lower court's decision refusing the issuing of a Constitutional writ, he should be entitled to his costs before that Court in substitution for the order which was made. 7 The Minister submits that there is no automatic rule that costs should always follow the event. That is undoubtedly true. Such occasions where the "ordinary rule" might not apply include where the successful party's submissions on appeal differed from those advanced before the primary judge or the judgment on appeal turned on an issue not argued below: Snedden v Republic of Croatia (No 2) [2009] FCAFC 132, [3]-[4]. 8 The Minister's submission is that the ground on which the appellant succeeded was not one which was advanced before the primary judge. Indeed, he submits that it was not expressly advanced to this Court on appeal either. Whilst there is some substance to that submission, the relevant issue arose out of the Minister's own arguments advanced on appeal. It was an integer or element of the submissions made by the Minister in respect of the issues which were argued on appeal pursuant to leave: see [29] of the principal reasons. The point was further dealt with in [41] and [42] of those reasons. 9 In the course of arguing the appeal the Minister advanced the proposition that material given to the Secretary under s 473CB(1)(c) cannot be "new information" within s 473DD and the Authority may consider it without giving particulars of it to the applicant. By this step in the Minister's argument, he sought to ask the Court to accept a proposition which was apparently contrary to the terms of the Migration Act 1958 (Cth) and the observations of Gageler, Keane and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 at [25]-[27]. The point was a pure question of law arising in the course of the hearing which identified the existence of a jurisdictional error in the decision of the Immigration Assessment Authority. 10 In the circumstances where the precise jurisdictional error which ought to have been detected on the initial application for review shows itself as a consequence of the Minister's submissions on appeal there is force in Mr Kaplan's argument that the costs of the initial application for review should not be paid by the Minister. That said, it appears to have been a point of which those representing the Minister were aware. They took the position that, despite this being an issue of public law concerning the proper performance of the executive's power, it was not incumbent upon them to raise it before the Federal Circuit Court or to identify its existence before this Court. On the other hand, although the appellant's arguments concerned the Authority's reliance on the invalid certificate and identity information, they did not identify the precise point on which they succeeded. 11 In the result, the appellant has succeeded overall in setting aside the decision of the primary judge, albeit pursuant to a point which was not agitated before that judge. It seems that it ought to be accepted that if the point had been raised below it would have been successful and an appeal not required. On the other hand, the first respondent sought to defend a decision which was found to be invalid. There are merits on both sides of the argument and the appropriate order for costs is that each party bear their own costs of the proceedings in the Federal Circuit Court. 12 Consequently, order 3 of Judge Street of 14 February 2017 should be set aside and, in lieu thereof it be ordered that there be no order as to costs of the application before that Court. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.