CRK16 v Minister for Home Affairs

1. The appellant pay the first respondent's costs of the proceeding as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNY J: 1 On 2 June 2020, the Court made orders in this matter, including orders granting an extension of time for filing a notice of appeal, dismissing the appeal, and providing that: Unless a party notifies the Court in writing by 4.00pm on Wednesday, 3 June 2020 indicating opposition to this order as to costs, there be no order as to costs. 2 On 3 June 2020, the respondent Minister notified his opposition to a no-costs order. The Court subsequently provided the parties with an opportunity to file short written costs submissions and also ordered that the issue of costs be determined on the papers. 3 On 8 June 2020, the appellant's legal representative advised that the appellant did not intend to file costs submissions. On 9 June 2020, the Minister's legal representatives filed costs submissions. 4 The Minister sought an order that the appellant pay the Minister's costs of the proceeding in this Court, fixed in the amount of $6,750 or, in the alternative, pay the Minister's costs as agreed or assessed. For the following reasons, I would order that the appellant pay the Minister's costs, as agreed or assessed. 5 Under s 43(2) of the Federal Court of Australia Act 1976 (Cth), the disposition of costs is at the discretion of the Court, although this discretion must be exercised judicially: see Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 at [9]. Ordinarily, a successful party is entitled to an award of costs in the absence of special circumstances justifying some other order: see, for example, Ruddock v Vadarlis (No 2) at [11] and Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [67] (McHugh J) and [134] (Kirby J). If an appeal succeeds, then in the ordinary course, the Court will order the respondent to pay the costs of the appeal and of the proceeding at first instance. If an appeal fails, then ordinarily the Court will order the appellant to pay the costs of the appeal. In this case, although the appellant succeeded in his extension of time application, he did not succeed in the appeal. 6 There is authority for the proposition that where an appeal raises a novel question of general importance and some difficulty, the appeal court may decline to order costs against an unsuccessful appellant: see Re Mersey Railway Co (No 1) (1888) 37 Ch D 610 at 619 (cited in Ruddock v Vadarlis (No 2) at [17]); see also Sea Shepherd Australia Ltd v Western Australia [2014] WASC 66; 313 ALR 208 at [25]-[38]. I do not consider the matters raised in the present case to be of such a kind as to justify a departure from the usual order as to costs. 7 Nor could it be said that the respondent Minister's conduct of the litigation involved some misconduct that might have deprived the Minister of the benefit of a costs award on the appeal. 8 The question is whether the Minister is entitled to an order that the appellant pay the entirety of his costs of the proceeding in this Court notwithstanding the Minister failed in his submissions that an extension of time should not be granted. 9 For present purposes, it seems to me that r 40.04 of the Federal Court Rules 2011 (Cth) (the Rules) can be put to one side. The rule provides as follows: 40.04 Costs on interlocutory application or hearing If no order for costs is made on an interlocutory application or hearing, the costs of the application or hearing: (a) if an order is made in favour of any party―follow the event; or (b) if no order is made in favour of any party―are taken to be costs in the cause of the successful party to the proceeding. 10 In Azaria Family Day Care Pty Ltd v Secretary, Department of Education and Training [2018] FCA 1640 at [56], Wheelahan J expressed the view that this rule provides for a default position if no order as to costs is made. I agree: see also DHP19 v Secretary of the Department of Health (No 2) [2019] FCA 1531 at [4]. The rule is inapplicable in this case, where the respondent Minister is seeking a specific order to address the matter of costs in the proceeding, including the costs of the extension of time application. 11 The Minister submitted that the Court "should treat the costs of the application for an extension of time as costs in the cause", citing Azaria, in which Wheelahan J observed, at [55], that: [T]here is appellate authority to the effect that the usual order for costs in the case of a successful application for interlocutory injunction, to which the current application has some parallels, is that costs be costs in the cause: His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand and Anor v the Macedonian Orthodox Community Church St Petka Inc and Anor (No 2) [2007] NSWCA 142 at [27]. 12 Azaria concerned an application for an interlocutory order under s 15 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to suspend the operation of an administrative decision. In relevant ways, the application in Azaria resembled an application for an interlocutory injunction. In particular, in both instances the relief sought is designed to advance the final hearing. Whether a successful application in either instance is ultimately fruitful depends on the outcome of the final hearing: compare James v Commonwealth Bank of Australia (No 2) [2015] FCA 599 at [13]-[19]. An application for an extension of time for filing a notice of appeal is also designed to advance the final hearing, and whether, if successful, that application is ultimately fruitful depends on the outcome of the appeal. In the present case, as in the case of a successful interlocutory injunction, this seems to me to provide a cogent basis to treat the costs of the successful application for an extension of time as costs in the cause: compare Hurd v Zomojo Pty Ltd [2015] FCAFC 147; 110 ACSR 38; Twentyman v Secretary, Department of Social Services [2018] FCA 1892; 163 ALD 517 and CLJ15 v Minister for Immigration and Border Protection [2018] FCA 1638. Bearing this in mind, it seems to me appropriate to make an order of the kind the Minister has sought. 13 On reflection, it does not appear to me that there was anything in the way the proceedings unfolded in this Court that would justify an order depriving the Minister of an award of costs as the ultimately successful party. This is not to say that in another case involving an application for an extension of time in which to appeal and an appeal, there may not be another consideration militating in favour of a different costs outcome. It suffices to say there is no such consideration in this case. 14 While the amount sought by the Minister ($6,750) is less than the amount that can be claimed in a short form bill ($7,241) for an appeal involving a migration decision (see item 15.2 of Sch 3 to the Rules), an amount claimed in a short form bill is subject to the procedure for the taxation of short form bills of costs set out in r 40.44: see also BTN16 v Minister for Immigration and Border Protection [2019] FCA 1354 at [21]. As Moshinsky J there observed "it is not necessarily the case that the Minister would obtain $7,241 under that process". The Minister properly accepted that the amount of a costs award must be reasonable and proportionate to the nature and complexity of the case: see, for example, Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506 at [18]. I am unable properly to make this assessment of the amount of $6,750 sought by the Minister here, there being no evidence before me upon which I could reliably make this assessment. The preferable course in all the circumstances is, so it seems to me, to require the appellant to pay the first respondent's costs of the proceeding as agreed or assessed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.