CYF16 v Minister for Immigration and Border Protection

1. The application made by the appellant in his submissions filed on 15 January 2019 to set aside Order 2 of the Federal Circuit Court of Australia made in SYG2749/2016 on 14 November 2017 be dismissed Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC J: 1 On 18 December 2018 I made orders in this matter including an order allowing an appeal from orders made in the Federal Circuit Court of Australia (Federal Circuit Court) and an order setting aside Order 1 made by that court and in lieu thereof ordering that a writ of certiorari issue quashing the decision of the second respondent (Tribunal) made on 1 September 2016 and remitting the matter to the Tribunal to reconsider according to law: CYF16 v Minister for Immigration and Border Protection [2018] FCA 2034 (CYF16 (No 1)). 2 In addition to Order 1, the Federal Circuit Court had ordered that the appellant, who was the applicant in that court, pay the costs of the first respondent (Minister) for the application before it (Costs Order). I did not set that order aside. I indicated in my reasons for judgment that I was not presently inclined to set aside the Costs Order because the appellant had succeeded on the appeal on a ground not raised in the Federal Circuit Court in circumstances where he was represented by the same solicitors in that court and on appeal but had different counsel: CYF16 (No 1) at [67]. 3 In the event that the appellant contended that a different order should be made in relation to the Costs Order, he was given an opportunity to file and serve submissions setting out why that was so and the Minister was given an opportunity to file and serve submissions in reply: CYF16 (No 1) at [68]. I indicated that if such submissions were filed the question of whether the Costs Order should be set aside and a different order made in lieu thereof would be determined on the papers: see s 20A(2)(c)(ii) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). 4 The appellant has now filed submissions in relation to the Costs Order and the Minister has filed submissions in reply. 5 The appellant submitted that the Costs Order should be set aside and, in lieu thereof, an order made that the Minister pay the appellant's costs below or, in the alternative, an order should be made that the parties each bear their own costs of the proceeding below. The appellant submitted that there were four reasons why these orders should be made: (1) first, in the ordinary course, a successful appellant will be awarded both the costs of the appeal and the proceeding below on the premise that it is "usually demonstrable that the party in the court below should have won, and that the order for costs should therefore have been in his favour", quoting Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG (No 2) [2015] VSCA 123 at [44]; (2) secondly, there is no rule that every time an appellant frames its argument on appeal differently, it should be deprived of its costs. The appellant referred to BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418 (BOZ16) asserting that if, in the circumstances of that case, the appellant could have its costs below then a fortiori he should have his costs of the first instance proceeding; (3) thirdly, the successful ground of appeal raised in this Court should not be regarded as an entirely new ground because it was connected to and overlapped with the ground raised below; and (4) fourthly, even if the Court departs from the approach taken in BOZ16, the appropriate order would be that each party pays its own costs of the proceeding. The appellant contended that it would be unwarranted for the Court not only to deprive it of its costs below but to require it to pay the Minister's costs which were incurred in advancing the erroneous positions that the Tribunal correctly applied the relocation principle and that the relief sought should be refused. The appellant referred to BCR16 v Minister for Immigration and Border Protection (No 2) [2017] FCAFC 120 (BCR16) in which the appellant was successful on a new ground that was "sufficiently different" to that raised below such that a Full Court of this Court did not consider it appropriate to order the Minister to compensate the appellant in that case for his costs below and ordered each party to pay their own costs of that proceeding. The appellant contended that the ground he raised on appeal was not "sufficiently different" in the relevant sense but that, if the Court were to find to the contrary, each party should bear its own costs of the proceeding below. 6 Section 43 of the Federal Court Act confers a broad discretion on the Court to award costs in proceedings before it. As was recognised in BCR16 the exercise of that discretion "is one in which reasonable judicial minds may differ" and will be "dependent on the particular circumstances of each case": at [11]. In the circumstances of this case, and having considered the parties' submissions, for the reasons that follow the Costs Order should not be disturbed. 7 It may be that in the ordinary course a successful appellant would have its costs of the appeal and the proceeding below because success on the appeal demonstrates that it should have won below and thus have the benefit of a costs order in its favour in that proceeding. However, this is not such a case. Here the appellant was given leave to raise a new ground of appeal on which he succeeded. That ground, like the ground in fact raised before the primary judge, concerned application of the relocation test. However, the new ground focussed on a different aspect of the application of that test by the Tribunal such that the only connection between the ground raised before the primary judge and the new ground raised on appeal was that both grounds concerned the Tribunal's application of the relocation test. 8 The ground of appeal alleging that the primary judge erred in his consideration of the sole ground raised before him was dismissed: CYF16 (No 1) at [32]-[40]. The appellant's success on appeal was because of the new ground. As I have already observed at [2] above, leave was granted to raise the new ground on appeal in circumstances where the appellant was represented at first instance and on appeal by the same solicitors but with different counsel who identified the new ground. I found that to be an unsatisfactory explanation for not raising the ground below: see CYF16 (No 1) at [56]. 9 The appellant's reliance on BOZ16 is misplaced. The reasons of the Court in that case do not, as the Minister points out, expose the reason why the Court made an order setting aside the costs order made by the Federal Circuit Court and ordering that the Minister pay the appellant's costs in the court below. 10 For those reasons the appellant is not entitled to his costs of the proceeding below. 11 Nor, in my opinion, should an order be made that each party pay its own costs of the proceeding before the Federal Circuit Court. As the Minister submitted the circumstances of BCR16 were different. Critically, the appellant in that case succeeded on a ground which was based on an authority that had not been handed down until after the judgment of the primary judge. There was no finding in that case that the reason for not raising the ground before the primary judge was unsatisfactory. In contrast, the ground that was raised on appeal in this case was open to be raised before the primary judge, yet it was not. Rather a single ground, on which the appellant ultimately failed on appeal, was argued before the primary judge. 12 Relying on the new ground, the appellant was successful on appeal. He has been compensated by an order that the Minister pay his costs of the appeal. However, given my reasons set out above, the Costs Order should not be disturbed such that the orders made on 18 December 2018 need not be supplemented. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.