FCV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. There be no further order as to costs in the proceeding below or in the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCKERRACHER J: 1 In this proceeding the first respondent, the Minister, conceded an appeal from the Federal Circuit Court of Australia on 11 June 2021. Orders made by consent on 2 July 2021 set aside the Federal Circuit Court's decision, including an order that the appellant pay the costs of the Minister in the sum of $6,500. The Minister also conceded he should pay the appellant's costs of the appeal to this Court, but disputed liability to pay the appellant's costs in the Federal Circuit Court. 2 The parties have filed written submissions for the issue of first instance costs to be determined on the papers. 3 The appellant produces an invoice from a barrister advising him in relation to this matter when it was before the Federal Circuit Court. The appellant seeks payment of that invoice as a payment necessarily incurred in the conduct of the Federal Circuit Court proceeding, which he has successfully appealed. 4 The appellant's argument is relatively simple. He contends first that costs of the first instance hearing should follow the event and secondly that he has incurred legal costs. Clearly in the ordinary course of litigation, costs follow the event. The appellant makes the point that by conceding judgment, it is clear, not only that the appellant has won his appeal, but he also should have succeeded in the Federal Circuit Court. That is because of the concession by the Minister in this appeal, that the decision of the Federal Circuit Court was wrong because it failed to identify that the decision of the Immigration Assessment Authority was affected by jurisdictional error. 5 The appellant asserts that it is irrelevant that the Minister's concession was based on a particular point that had not previously been agitated by the appellant, either in the Federal Circuit Court or the notice of appeal in this Court. 6 This is not strictly a situation where the appellant has succeeded on a new ground of appeal, but where his original grounds have been dismissed by the Court. He accepts that in such a case it may be appropriate for there to be no order for costs below. The appellant contends however that this is a case where he might have succeeded on the appeal on the basis that the Federal Circuit Court erred in dismissing any one or more of his grounds advanced below and it is now 'obviously inappropriate for that question to be considered, in light of the Minister's concession of error on a different basis'. 7 The appellant was unrepresented in the Federal Circuit Court but had received advice from counsel in relation to his application. No more is known about the advice and counsel did not appear or act in the proceeding. The Minister says that while it may be appropriate in some circumstances (for example, those prevailing in Mbuzi v Favell (No 3) [2012] FCA 1078), for a self-represented litigant who produces an account for advice provided in connection with a case to recover that cost, this is not an appropriate case because it was the Minister who conceded the appeal on a ground which had not been raised at all by the appellant. Indeed, the appellant's grounds of appeal were vague and unparticularised; they made broad assertions of unfairness without reference to any specific aspect of the decision or conduct of the proceeding. 8 In my view, this aspect of the matter is a significant consideration. 9 It is well-established that the wide discretion of the Court in relation to costs is to be exercised judicially, not in an arbitrary or capricious manner, and must take account the contextual features and facts of the litigation: Kazar (Liquidator) v Kargarian [2011] FCAFC 136; (2011) 197 FCR 113 per Greenwood and Rares JJ (at [4]) and many other cases. 10 As the Minister points out, there are contextual features of some significance in this proceeding as follows: (a) the appellant filed an application in the Federal Circuit Court seeking review of a decision of the Authority on 3 September 2019. He was unrepresented at all times during the proceeding and at no time did a lawyer appear on the record; (b) the appellant raised three grounds of review in that proceeding. None of those formed the basis on which the appellant has now been successful by the Minister's concession. The notice of appeal raised two further grounds. Again, neither of these grounds identifies the error upon which the appellant has succeeded; (c) at no time after the date of receipt of counsel's advice did the appellant seek to amend his application to identify what the Minister has now accepted to be a jurisdictional error requiring remittal; and (d) the error that has required the matter to be remitted was identified by the solicitor for the Minister entirely independently of the appellant. 11 It is often the case that on a successful appeal the costs of the proceedings below are also awarded in favour of an appellant, however that is not inevitably the case. Circumstances vary considerably. Cases in which such an order has not been made include Khant v Minister for Immigration and Citizenship [2009] FCA 1247; AJQ16 v Minister for Immigration and Border Protection (No 2) [2018] FCA 389; CED16 v Minister for Immigration and Border Protection (No 2) [2019] FCA 438 and SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 979. 12 The Minister also relies on WZARZ v Minister for Immigration and Border Protection [2014] FCA 287, which differs slightly from the present case. In WZARZ, the Minister conceded an appeal on the basis of an error identified by the Court, not by the appellant. In considering costs, North J specifically rejected a submission that because the appellant had been successful in overturning a recommendation of an independent protection assessor, even though on a basis not raised by the appellant, the usual principle that costs follow the event should still apply. His Honour found that the Minister, acting reasonably and responsibly in conceding the matter, should not be ordered to pay costs of the appeal or, relevantly, the proceedings below (at [11]). 13 Again, the appellant says that these cases can all be distinguished and that may be so, at least on the specific facts, but the Minister says that the fundamental flaw with the appellant's position is that the appellant's notice of appeal in this Court did not purport to agitate the grounds of appeal raised below. Rather, it raised allegations of procedural fairness and an unidentified error of law. Even if the appellant had succeeded on a ground raised in his notice of appeal, he would only have done so raising 'new grounds', not run at first instance. 14 The appellant suggests that he did not abandon his grounds of review advanced in the Federal Circuit Court, but this is an artificial contention in my view. The grounds in the notice of appeal in this Court were simply that 'The decision is wrong … the decision is unfair' and the decision 'is effected [sic] by an error of law and denied [the appellant] procedural fairness'. None of these grounds properly reflects arguments advanced unsuccessfully in the Federal Circuit Court. Nor is it likely that they would have enjoyed success. They are expressed at such a high level of generality that they do not reveal any basis for thinking that the appellant could have been successful if the Minister had not conceded a different error and the appeal had proceeded. 15 Although the appellant seeks to distinguish the various cases relied upon by the Minister, all that one can really draw from these cases is that there will be circumstances in the exercise of judicial discretion in which the costs of the proceeding below are not awarded in favour of a successful appellant. 16 In this particular instance, where the appellant has succeeded only because the Minister, in the exercise of his obligations as a model litigant, has identified an error in the decision of the Authority, the circumstances are such as to warrant a departure from the usual rule that a successful appellant receive costs at first instance as well as on appeal. 17 Each party has also sought their costs of this costs argument. In my view, although the Minister has prevailed, the merits were finely balanced and the argument for the appellant was appropriately and properly run. The appropriate disposition is that there be no costs awarded on the costs argument, nor at first instance. Accordingly, there will be no further costs orders in the proceeding. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher.