EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

KENNY J: 1 On 27 June 2022, the Court made orders, including that the appeal be allowed, and published its reasons for judgment: see EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 736. At the same time, an order was made for the parties to file and serve submissions as to the disposition of the costs of the appeal and, if relevant, the costs of the first instance proceeding. The first respondent (the Minister) and the appellant both filed costs submissions on 11 July 2022 in conformity with these orders. 2 After these submissions were filed, a further order was made to allow the Minister to address a particular issue. The appellant had raised the issue in his submissions but the Minister had not had an opportunity to address it. In conformity with this order, the Minister filed additional submissions. 3 Under s 43(2) of the Federal Court of Australia Act 1976 (Cth) (the Act), the disposition of costs is at the discretion of the Court. This discretion must, of course, be exercised judicially having regard to the applicable principles and the justice of the case in all the circumstances: see Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 at [9]; Summers v Repatriation Commission (No 2) [2015] FCAFC 64 at [13]-[14]. Ordinarily, costs follow the event. That is, a successful litigant receives costs in the absence of special circumstances justifying some other costs order: see, for example, Ruddock v Vadarlis (No 2) at [11]. 4 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: Ruddock v Vadarlis (No 2) at [16]. This is not an invariable rule, however. The discretion conferred on the Court allows it to take account of the particular circumstances of the case when making an order for costs. 5 In conformity with these principles, the parties accepted that the respondent Minister should pay the appellant's costs of the appeal. In view of this and the fact that there is nothing disclosed in the circumstances of this appeal that would lead me to depart from this usual order as to costs, I would order that the first respondent pay the appellant's costs of the appeal, as agreed or assessed. 6 The dispute with respect to costs concerns the costs order made by the primary judge on 18 August 2020. 7 The appellant submitted that the costs order made by the primary judge in the Federal Circuit Court should be set aside or vacated. In the alternative, the appellant submitted that the costs below should be limited to the amount permitted by the Federal Circuit Court Rules 2001 (Cth) as applicable when the order was made (Federal Circuit Court Rules): that is, the costs order should be for the appellant's costs of the appeal, less $7,467 (and not the amount of $12,000 fixed by the primary judge). The appellant made two separate arguments in support of his submissions. 8 First, the appellant contended that the Minister could not "maintain the position that the Respondents are entitled to any costs" of the proceeding before the primary judge since the Minister had failed to act as a "model litigant" with respect to an "unrepresented and untrained" litigant. In written submissions, citing P & C Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales [1973] 2 NSWLR 366 at 383 and Hona v Minister for Immigration and Border Protection [2018] FCA 1564 at [17], the appellant submitted that: The Court's role in circumstances such as these should be understood alongside the role of the only represented party before it. As a manifestation of the Crown, the Minister was expected to act as a 'model litigant'. Part of the obligation of such a party is to assist "the court to arrive at the proper and just result". 9 The appellant submitted that the Minister did not take the steps that as a 'model litigant' the Minister should have taken in the proceedings below. The appellant submitted that: The successful ground of judicial review was left obscured to the Court below. The Minister now apparently seeks to take advantage of that by seeking to maintain the costs order which arose from the Minister's failure to act as a model litigant ... 10 Secondly, the appellant submitted that the costs award made by the primary judge had no basis and was contrary to the Federal Circuit Court Rules. The appellant noted that the primary judge gave an ex tempore judgment immediately after hearing from the then self-represented applicant and from a solicitor representing the Minister. The appellant observed that there was nothing to indicate that his Honour received any submissions on costs, including the quantum of costs. The appellant drew attention to the fact that in awarding costs to the Minister in the sum of $12,000, the primary judge made a costs award equivalent to 160% of the amount specified in those Rules. Citing NAOY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 275 at [8], the appellant submitted that this Court should not sanction such a departure from those Rules by its own costs order especially where: a. No reason at all was given by the Court below for any departure from the amount in the Rules, let alone a departure of this magnitude; b. There is nothing to indicate that $12,000 reflected the costs actually incurred by the Minister and it is inherently unlikely that a solicitor alone would incur costs in that quantum where the Applicant is not legally represented nor trained; and c. The Minister should not have been successful in the Court below. 11 The Minister on the other hand contended that the Court should not disturb the costs order made by the primary judge. The respondent Minister relied on the fact that the appeal succeeded on a ground that could have been, but was not, raised before the primary judge. The Minister submitted that the only issue before the primary judge raised by the sole review ground concerned the jurisdiction of the Immigration Assessment Authority. The Minister noted that lawyers had drafted this review ground for the then applicant prior to the hearing, although no lawyer had represented him at the hearing. The Minister submitted that the appellant had not "identified error by the primary judge with respect to his Honour's reasoned consideration and rejection of the pleaded issue". Referring to Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [62], the Minister contended that in these circumstances the Minister was entitled to the costs of the proceeding below. 12 In additional submissions, the Minister repudiated the appellant's contention that on this appeal the Court might award the appellant his costs of the appeal less $7,467, rather than $12,000 as awarded by the primary judge below. The Minister accepted that, in exercise of its appellate jurisdiction, the Court might set aside a costs order made by the Federal Circuit Court if such an order followed the outcome of the proceedings, although argued against this as a matter of discretion. What the Court could not do, so the Minister said, was "re-make" the costs order at first instance. That is, in the Minister's submission, the Court could not "set aside the order for costs actually made and 'substitute' an order for costs in a revised amount". The Minister submitted: This Court has broad powers under Division 2 of Part III of the Federal Court of Australia Act 1976 (Cth). It is accepted ... that the Court's appellate jurisdiction extends to setting aside a costs order made in the proceedings the subject of the appeal, and to requiring the unsuccessful party on the appeal to pay the successful party's costs of the proceedings in the lower court. But that jurisdiction does not extend to permitting this Court to ignore an order for costs made by a lower court or empowering this Court to exercise the lower court's jurisdiction in respect of costs, which includes the exercise of power to set a fixed amount for costs. Broadly speaking, it seems to me that this submission should be accepted, providing, of course, that there is no demonstrable error of law in the relevant exercise of power. 13 The Minister contended that, questions of power aside, the appellant had provided no evidence to support his submission as to offsetting. In this context, the Minister submitted that there was no evidence that the primary judge had "misconstrued his powers, or improperly exercised his discretion" in making the costs order in the fixed amount of $12,000 against the applicant below. The Minister also relied on the fact that there was no separate challenge in the amended notice of appeal to the primary judge's determination to fix costs on an amount above the scale set out in Schedule 1 of the Federal Circuit Court Rules. Citing House v The King [1936] HCA 40; 55 CLR 499 at 504-5, the Minister submitted that the appellant "has not sought to establish ... that the primary judge identified any wrong principle, or took into account any extraneous or irrelevant matter, or failed to take into account a relevant consideration" in exercising the discretion as to costs. 14 In resolving the present dispute, one must not only bear in mind the statutory provisions governing an award of costs in this jurisdiction, including s 43 of the Act, but also the statutory provisions applicable to the Federal Circuit Court at the time of making the impugned costs order. Section 79(2) and (3) of the Federal Circuit Court of Australia Act 1999 (Cth) provided: (2) The Federal Circuit Court of Australia or a Judge has jurisdiction to award costs in all proceedings before the Federal Circuit Court of Australia (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 Court of Australia or Judge. 15 Rule 21.02(2) of the Federal Circuit Court Rules provided: (2) 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 Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or (d) set a time for payment of the costs, which may be before the proceeding is concluded. Part 44 of the Federal Circuit Court Rules concerns proceedings under the Migration Act 1958 (Cth). Rule 44.15(1) in that Part further provided: The Court may, in relation to a proceeding that is concluded, order an unsuccessful party in the proceeding to pay the costs of a successful party in accordance with Division 1 of Part 3 of Schedule 1. 16 Division 1 of Part 3 of Schedule 1 provided: Costs for migration proceedings that have concluded Item Description Amount (including GST) 1 A proceeding concluded at or before the first court date for the proceeding $1,495 2 A proceeding concluded: $3,737 (a) after the first court date for the proceeding; and (b) at or before the hearing under rule 44.12 or other interlocutory hearing 3 A proceeding concluded at a final hearing $7,467

17 It may be accepted that where a proceeding is of average complexity in the Federal Circuit Court, these sums generally "represent an assessment by th[at] Court of what can be considered to be reasonably and properly incurred in a proceeding under the Migration Act on a party and party basis". See, for example, CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467 at [27], referring to SZUVZ v Minister for Immigration and Border Protection [2015] FCCA 2346 and SZRTP v Minister for Immigration and Citizenship (No 2) [2013] FCCA 711; 277 FLR 469. Nonetheless, the provisions mentioned above make it clear that the primary judge was not required to award costs in accordance with the sum set out in Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules. Rather, his Honour retained a discretion as to the award of costs: see Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; 148 ALD 507 at [100]-[101] (Griffiths J). Where, however, a judge of the Federal Circuit Court proposes to make an order for costs exceeding the sums for which provision has been made, the judge should ordinarily indicate the particular circumstances that made this course appropriate in the exercise of discretion: see, for example, Khan v Minister for Immigration and Border Protection [2017] FCCA 3158. The primary judge in this case did not, it seems, identify any particular circumstance that warranted an award of costs substantially higher than the sum of $7,467. The first respondent and the appellant accepted was that this was the applicable amount had his Honour acted under r 44.15 in conjunction with Pt 3, Div 1 of Schedule 1 of the Federal Circuit Court Rules. 18 By his amended notice of appeal, the appellant appealed against the whole of the judgment given by the primary judge on 18 August 2020, including his Honour's costs order. The appellant did not appeal with respect to the grounds advanced before the primary judge. Nor did any of the grounds advanced by the appellant impugn the manner in which the costs order was made. The appellant successfully appealed, with leave, on new grounds. In such a case, it is open to this Court to allow the order as to costs made by the Federal Circuit Court to remain undisturbed, as the Minister urged in this case. Chan is an example of this. The Court in Chan upheld an appeal from the Federal Circuit Court, which succeeded on a new ground, but failed on the grounds raised below. The appellant received the costs of the appeal, but the Court declined to disturb the costs order made in the respondent Minister's favour in the Federal Circuit Court: Chan at [62]: see also CKV16 v Minister for Immigration and Border Protection [2019] FCA 342; 164 ALD 163 at [30] and Snedden v Republic of Croatia (No 2) [2009] FCAFC 132 at [3]-[4]. 19 As already indicated, however, the Court has a broad discretion with respect to costs orders: see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd. (No 2) [2015] FCAFC 166; 235 FCR 366 at [4]. The exercise of discretion in a particular case frequently depends on the specific circumstances of that case. 20 Some matters can be put out of account here. I reject the appellant's submissions to the extent that they called into question the conduct of the Minister's lawyer in the Court below for failing to identify the ground on which the appellant succeeded on this appeal. I accept that the duty of a lawyer representing a model litigant is a high one; and that the Minister was obliged to observe the duties of a model litigant in this appeal and in the proceeding below. The Minister's lawyer was not, however, required to identify and formulate for the then unrepresented applicant the unarticulated review ground subsequently advanced on the appeal. 21 As noted already, the Court below did not explain why it thought it appropriate to order costs against the then unrepresented applicant substantially above the amount for which Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules provides. The absence of an explanation is troubling. In the absence of a challenge on the appeal to the manner of the making of the costs order, involving argument and possibly evidence at the hearing, I am, however, unable to conclude that the costs award was an ineffective exercise of discretion of the kind adverted to in House v The King at 504-5. 22 The appellant has suggested that the parties were not heard on the quantum of costs but he has not contended that he was denied procedural fairness. Of course, if the parties had been heard on that issue, then in discharging the responsibilities of a model litigant, the Minister's representative should have drawn the Court's and the then unrepresented applicant's attention to the applicable provisions of the Federal Circuit Court Rules as to costs: see [14]-[16] above. There is, however, no evidence before me to show precisely what happened before the primary judge. I can therefore make no relevant findings. 23 The appellant's lack of legal representation must, I think, be borne in mind. As already indicated, it appears that he received legal assistance in drafting an amended application for judicial review. The amendment raised a challenge to the jurisdiction of the Immigration Assessment Authority of the kind considered by the Full Court in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178; 260 FCR 447. This assistance ended well before the final hearing before the primary judge on 18 August 2020. Another lawyer may very briefly have passed through the appellant's litigation without, it seems, rendering any substantive assistance. Be this as it may, it is clear that the appellant had no legal representation at the final hearing. Bearing in mind that the appellant had no facility in the English language, let alone any relevant legal training or other knowledge, he was evidently not equipped to advance any legal argument impugning the decision under review. 24 The particular circumstances of this case are relevantly different from Chan, CKV16 and Snedden. They closely resemble: BCR16 v Minister for Immigration and Border Protection (No 2) [2017] FCAFC 120; BCH17 v Minister for Immigration and Border Protection [2018] FCA 300; AJQ16 v Minister for Immigration and Border Protection (No 2) [2018] FCA 389, SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 979; and BAU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1169. 25 In BCR16, a Full Court of this Court had earlier allowed an appeal from the orders of the primary judge, set aside the impugned decision, and remitted it for determination according to law. The Court ordered the Minister to pay the appellant's costs of the appeal. The Court subsequently ordered that there should be no order as to the costs of the proceeding before the primary judge. In so doing, it noted that the primary judge had decided whether there was an error in the impugned decision in "a different context" to the Full Court and that the appellant had succeeded on a ground not raised before the primary judge: see BCR 17 at [5]-[6], [17]. 26 In BCH17 the Court was concerned with the disposition of costs on an appeal where the appellant had sought a protection visa. The appellant had been unrepresented in the Federal Circuit Court, where his application was dismissed. Having obtained leave to raise a new ground, he was successful on appeal; and the Court set aside the judgment of the Federal Circuit Court, including its costs orders. 27 In AJQ16, the Court cited BCH17 and set aside the costs order of the Federal Circuit Court in similar circumstances to that case, including that he succeeded on a new ground on his appeal to this Court, having been unrepresented at first instance. As Kerr J said in AJQ16 at [31]: [W]here a ground of appeal that was not contended for in the court below succeeds there may be a plenitude of circumstances in which a different conclusion might be called for. However, in the absence of any factor such as, but not limited to, unreasonable conduct on the successful appellant's part, I am satisfied that the correct exercise of the Court's costs discretion should coincide with the substantive outcome of the appeal, as it did in BCH17. Save for the circumstance that the then unrepresented Appellant succeeded on a point not raised at first instance, the Minister points to no other factor. I am therefore satisfied, having regard to my duty to exercise the discretion judicially in accordance with established principle, that I should set aside the costs order made by the court below. 28 Allsop CJ adopted a similar approach in SZQYM, where the Minister argued (as here) that although the appellant had succeeded on the appeal, the costs order below should not be disturbed since the grounds on which the appellant succeeded had not been advanced before the primary judge. His Honour held that it was appropriate in that case that each party bear its own costs of the proceeding in the Federal Circuit Court and ordered that the costs order below be set aside and that there be no order as to costs: see SZQYM at [10]. 29 More recently, in BAU18, Bromberg J pursued much the same approach, this time in the case of an appeal from the Federal Circuit Court concerning a challenge to a decision of the Immigration Assessment Authority. The appellant, though represented in the lower court, succeeded on appeal on a ground not been raised below. Appositely for this case, his Honour stated, at [34]: I have come to the view that whilst the order made by the primary judge ought not to be reversed, it should be set aside with the consequence that each of the appellant and the Minister will bear their own costs of the proceeding before the FCCA. It is clear on the findings here made that the appellant, through no fault of his own, was not afforded the fair process to which he was entitled before the IAA. He should never have been put to the cost of bringing a judicial review application in the circumstances in which he did and the Minister, and through him the Commonwealth, should bear some responsibility for the IAA's failure to perform its statutory task. That the appellant should pay his own legal costs before the FCCA seems to me to be a sufficient impost for his failure to raise there the ground upon which he was here successful. Accordingly, I will set aside the costs order made by the primary judge and order that in lieu thereof there be no order as to costs in relation to the proceeding before the FCCA. 30 For much the same reasons, it seems to me that, in the circumstances of this case, the costs order made by the primary judge should be set aside and that there be no order as to costs in relation to the proceeding in that Court. 31 For the foregoing reasons, I would order that: (1) The first respondent pay the appellant's costs of the appeal, as agreed or assessed. (2) Order 2 made by the Federal Circuit Court of Australia on 18 August 2020 be set aside; and in lieu thereof, it be ordered that there be no order as to the costs of the proceeding in that Court. (3) The parties bear their own costs in relation to the making of these orders. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kenny.

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