FZF18 v Minister for Immigration, Citizenship and Multicultural Affairs

Dates of hearing: 17 August 2023 (NSD 5 of 2020) 18 August 2023 (WAD 66 of 2020)

Date of last submissions (WAD 66 of 2020): 31 August 2023

Date of last submissions (NSD 5 of 2020): 16 October 2023

Counsel for the appellant (WAD 66 of 2020): Mr H Glenister

Solicitor for the appellant (WAD 66 of 2020): Savannah Legal

Counsel for the first respondent (WAD 66 of 2020): Ms C Taggart

Solicitor for the first respondent (WAD 66 of 2020): Sparke Helmore

Counsel for the appellant (NSD 5 of 2020): Mr G Buchhorn

Solicitor for the appellant (NSD 5 of 2020): Ravi James Lawyers

Counsel for the first respondent (NSD 5 of 2020): Mr B Kaplan

Solicitor for the first respondent (NSD 5 of 2020): Sparke Helmore

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent

IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by: RARES J DATE OF ORDER: 18 October 2023

1. By consent, the appellant pay the first respondent's costs fixed in the sum of $7,965.
2. A certificate be granted to the appellant under s 10(2) of the Federal Proceedings (Costs) Act 1981 (Cth) by reason of the rendering abortive of the proceedings on 16 March 2021 before the judge to whom the appeal was then docketed subsequently becoming unable to continue with and to give judgment in the appeal as stated in the letter dated 30 June 2023 from the Chief Justice to the parties. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by: RARES J DATE OF ORDER: 18 October 2023

1. The appellant pay the first respondent's costs fixed in the sum of $10,145.
2. A certificate be granted to the appellant under s 10(2) of the Federal Proceedings (Costs) Act 1981 (Cth) by reason of the rendering abortive of the proceedings on 28 January 2021 before the judge to whom the appeal was then docketed subsequently becoming unable to continue with and to give judgment in the appeal as stated in the letter dated 30 June 2023 from the Chief Justice to the parties.
3. Unless a judge of the Court otherwise orders, it be declared that Ravi James Lawyers has an equitable right to be paid any amount that the Attorney-General considers appropriate to authorise be paid to the appellant pursuant to order 2. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RARES J: 1 On 17 August 2023, I heard and decided the appeal in FZF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1032 and on 18 August 2023 I heard and decided the appeal in CHQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1078. 2 After I delivered ex tempore reasons, the parties in each appeal asked that I reserve any orders for costs so that they could attempt resolution and consider whether to seek that an order under the Federal Proceedings (Costs) Act 1981 (Cth) (the Costs Act) be made in light of the need for the second hearing of each appeal before me. 3 Each of FZF18 and CHQ18 now seek that I grant him a certificate under s 10(2) of the Costs Act that it would be appropriate for the Attorney-General to authorise a payment to him in the circumstance that there was a second hearing, before a different judge, of his appeal. 4 The need for a second hearing of each appeal came about as follows. On 30 June 2023, the Chief Justice wrote to the parties in both appeals to inform them that it had become apparent that the judge who had heard argument and reserved her judgment, first, on 28 January 2021 in CHQ18's appeal, and, secondly, on 16 March 2021 in FZF18's appeal, would not be able to pronounce orders or deliver reasons before that judge's resignation took effect on 1 August 2023. The Chief Justice informed those parties that she had re-docketed their respective appeals to me. 5 My associate wrote to the parties in each appeal on 3 July 2023, enquiring whether they wished that I decide the appeals on the papers, including the transcripts of the argument in 2021 before the previously docketed judge, or, without being under any obligation, wished to make further written submissions, including to draw attention to more recent authorities, or have an oral hearing on a mutually available date to persuade me, as the judge who now had to decide the respective appeal. Each of the parties in both appeals asked for a further hearing and appeared by counsel at it, conducting a detailed, substantive and helpful oral argument that enabled me to decide their respective appeals.

The statutory scheme 6 Relevantly, s 10 of the Costs Act provides in respect of, among others, this Court: 10 Costs certificates - incomplete proceedings ... (2) Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person, before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings. ... (4) The certificate that may be granted under subsection (2) or (3) by a court to a party to proceedings that have been rendered abortive or the hearing of which has been discontinued, as the case may be, is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney General to authorize a payment under this Act to that party in respect of such part as the Attorney General considers appropriate of any costs incurred by that party in relation to those proceedings. (5) A reference in this section to proceedings in a court includes a reference to proceedings by way of an appeal to that court. 7 The Court cannot grant a certificate to the Commonwealth or any person, such as the Minister, being sued on behalf of the Commonwealth by force of s 14(1)(a) and (d) of the Costs Act. 8 In addition, s 43(1) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) relevantly provides: 43 Costs (1) The Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which this or any other Act provides that costs must not be awarded. ...

The parties' submisions 9 At the conclusion of argument in each appeal, the parties referred to remarks of Jackman J in Smart Education Program Pty Ltd (in liq) v CLGC Australia Pty Ltd [2023] FCA 826 at [3]-[7] and expressed concern that his Honour's reasons may preclude the grant of a certificate under s 10(2) of the Costs Act. 10 On 31 August 2023, in FZF18's appeal, the solicitors for both parties agreed to an order that FZF18 pay the Minister's costs fixed in the sum of $7,965. That equated to the current short form amount of costs and disbursements that may be claimed in a single hearing of an appeal involving the Migration Act 1958 (Cth) prescribed in item 15.2 of Sch 3 to the Federal Court Rules 2011. FZF18 also sought an order for a certificate under s 10(2) of the Costs Act, which the Minister did not oppose. 11 In CHQ18's appeal, the appellant's legal representatives ceased to act for him after the hearing and determination of the appeal. The Minister sought an order that CHQ18 pay his costs fixed in the sum of $13,000 or, alternatively, as agreed or assessed, but opposed an order that it be in the short form amount. He argued that he had incurred considerably more costs in this appeal than in that of FZF18. The Minister did not oppose an order for the grant of the certificate, and, at the hearing, referred to my decision in Wu v Li (No 2) [2017] FCA 501 as supporting that course.

What order for costs should be made in CHQ18's appeal? 12 The outcome of each appeal did not raise any issue of general public importance or particular complexity or difficulty, but rather concerned CHQ18's and FZF18's understandable, but unsuccessful, attempts to set aside the decision in each case of the Immigration Assessment Authority to affirm a delegate's decision to refuse to grant a protection visa. At the hearings before me, no party filed any further written submissions or referred to any directly relevant authority decided after the first hearing of the respective appeal. 13 I will make the order sought by consent in FZF18's appeal. In CHQ18's appeal, I consider that it is appropriate, in all of the circumstances, to make an order for him to pay costs by reference to short form amounts. The purpose of there being short form bills and maximum amounts prescribed in the Rules is to avoid the unnecessary costs of taxing bills of costs in such cases where the subject matter is like that in CHQ18's appeal, namely typical of such litigation. 14 While, through no fault of the parties, there has been a second hearing of CHQ18's appeal, both sides wished that this occur. The parties acted reasonably and responsibly in adopting that course. In my opinion, the position in respect of the extra costs of the second hearing before me of CHQ18's appeal is substantially analogous to the situation in which extra costs have been incurred in an earlier hearing at which a party was granted leave to appeal or an extension of time. If that occurs, r 40.43(4) contemplates that the Court can order short form costs as prescribed in item 15.3 of Sch 3. At the time of the first hearing of CHQ18's appeal in 2021, the amount of those costs was prescribed as $2,180 (the current amount has now increased to $2,398). 15 I consider it appropriate, in the circumstances, to exercise the discretion in s 43(1) of the Federal Court Act to order that CHQ18 pay the Minister' costs fixed in the short form amounts in items 15.2 (as in force in 2021) and 15.3 (as currently in force) of Sch 3 to the Rules, namely $10,145.

Should a certificate be granted under s 10(2) of the Costs Act? 16 There is no presumption in favour of the grant of a certificate under s 6(2) of the Costs Act: Bullock v The Federated Furnishing Trades Society of Australasia (No 2) (1985) 5 FCR 476 at 477 per Smithers, Sweeney and Woodward JJ; Insight SRC IP Holdings Pty Ltd v Australian Council for Educational Research Ltd (No 2) [2013] FCAFC 73 at [16] per North, Rares and Robertson JJ. The Full Court held in Bullock 5 FCR at 477 that the discretion in s 6(2) is unfettered, but must be exercised judicially and on proper grounds. 17 In Wu (No 2) [2017] FCA 501 at [10], I found that both parties to a proceeding in the Federal Circuit Court on a creditor's petition under the Bankruptcy Act 1966 (Cth), that had lapsed before an invalid order purporting to extend it was made, should be granted a costs certificate under s 10(2). After the trial judge had reserved judgment in that matter, and before his Honour made any orders, the creditor's petition lapsed one year after its presentation, by force of s 52(4)(a) of the Bankruptcy Act. After the petition lapsed, the trial judge purported to make an order retrospectively under the slip rule extending the time before which it would lapse, despite s 52(4)(b) and (5) of the Bankruptcy Act limiting the power to extend time to only the period before the petition lapses. I found that this circumstance fell within s 10(2) of the Costs Act. That was because the proceedings had become abortive as a result of the trial judge "otherwise [becoming] unable to continue with, or give judgment in, the proceedings". Clearly enough, his Honour lost the power to do so due to the incurable lapsing of the petition while judgment was reserved. 18 In Hrycenko v Hrycenko (by his legal representative Hycenko) (No 2) [2022] FCAFC 192 at [37], Bromberg, Moshinsky and McElwaine JJ referred in obiter dicta to my decision in Wu [2017] FCA 501, saying, somewhat curiously: His Honour granted the certificate because the primary judge was not able to act upon a lapsed petition. The grant of the certificate in that case is an example of the exercise of the discretion; it is not authority for some general principle that a certificate should be granted on like facts. It would also appear that argument was not addressed to his Honour as why s 10(2) conferred a discretion to grant the certificate. The threshold is that a proceeding is rendered abortive on account of the inability of a judge to continue by reason of death, resignation etc, and not because of the absence of jurisdiction. 19 The power to grant a certificate is expressed in the words "the court may ... grant", that follows the Parliament's specification of the conditions that must exist to enliven that discretion. Thus, their Honours were correct to characterise my decision in Wu [2017] FCA 501 as an exercise of a discretionary judgment on the facts of that case and not a statement of principle as to how the discretion must be exercised. 20 The words conferring power in s 10(2) are materially the same as in s 6(2), which the Full Court in Bullock 5 FCR at 477 held conferred an unfettered discretion to grant a certificate that had to be exercised judicially and on proper grounds. Moreover, s 33(2A) of the Acts Interpretation Act 1901 (Cth) clarifies that, relevantly, where an Act provides that a court "may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the ... court". 21 In my opinion, the power in s 10(2) of the Costs Act is, first, discretionary and, secondly, operates where one of the factual circumstances specified in the provision exists that has rendered the relevant proceedings abortive, being where (noting that in Hrycenko [2022] FCAFC 192 at [37], the Full Court used "etc" without explaining why the words I have emphasised in s 10(2) might not deal with an absence of jurisdiction): the person, or a person, before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings (emphasis added) 22 If a judge, for whatever reason, becomes unable to continue with, or give judgment in, the proceedings, including because of an absence of jurisdiction that occurs after the proceedings commence to be conducted before the judge, rendering them abortive, that circumstance falls within the natural and ordinary meaning of s 10(2). The purpose of ss 6(2) and 10(2) in the Costs Act is to enable the court to exercise a discretion to certify that, in its opinion, it is appropriate for the Attorney-General to make a payment of costs to the party who applies for that certificate in such amount as the Attorney considers appropriate (see s 10(4)). 23 In Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 643-644 [27], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said: In construing a statutory provision, we should always keep in mind what Judge Learned Hand said in Cabell v Markham [(1945) 148 F 2d 737 at 739]: "Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." (emphasis added) 24 Here, the purpose of s 10(2) of the Costs Act is so that, where a proceeding has been rendered abortive because a judge or judges had become unable to continue with or give judgment in that proceeding, the court may grant a certificate that, in its opinion, the Commonwealth should pay all or some of the costs that a party who, through no fault of his, her or its own, had incurred which, in effect, had to be duplicated or had become inutile. 25 No occasion arose in Smart Education [2023] FCA 826 for the consideration of whether or not to exercise the discretion to grant a certificate under s 10(2) of the Costs Act. That is because, first, no party appears to have applied for a certificate, secondly, no party appears to have incurred any extra costs after the matter was docketed to Jackman J, and, thirdly, his Honour seems to have thought, despite both what the Chief Justice said in her letter to the parties about the original docket judge's inability (see [4] above) and s 16 of the Evidence Act 1995 (Cth), that it was necessary either for the original docket judge to somehow put on evidence about her inability to give judgment or for a party to do so, and that a party could have adduced more evidence than the Chief Justice's letter provided. 26 However, s 10(2) is concerned only with the objective fact that, in the circumstances, the judge concerned has become unable to continue with or give judgment. Obviously, if no extra costs are incurred because, as happened in Smart Education [2023] FCA 826, another judge could decide the matter on the same material as before the judge who could no longer deal with the proceedings, then no direct pecuniary prejudice has occurred for any party from having to make further submissions to, or appearances before, the replacement judge. But, if the proceedings cannot continue, for example, because the judge became incapable or died and a creditor's petition lapsed before another judge could determine them, then both parties will have suffered pecuniary prejudice for which s 10(2) is intended to enable the court to grant a certificate. A certificate may partially remedy the unintended injustice caused to the parties because the court could not fulfil its constitutional role of quelling their controversy by the exercise of its judicial power. 27 Once the Chief Justice transferred the matter from the original judge's docket to that of her replacement under s 15(1AA)(a)(i) of the Federal Court Act, the original judge was no longer seized of the matter or able to exercise judicial power to decide it. That is because the proceeding had been allocated to Jackman J for that purpose: see Rees v Crane [1994] 2 AC 173 at 187E-F. Under s 20(1) of the Federal Court Act, the Court's original jurisdiction must be exercised by a single judge, except as otherwise provided in that, or another, Act. There were no arrangements in place for two judges to deal with the proceedings relating to the decision in Smart Education [2023] FCA 826. 28 The circumstances facing each of, first, the original docket judge, secondly, the Chief Justice in deciding to reallocate the matter and, thirdly, Jackman J in having to deal with it thereafter, were unfortunate and extremely unusual, as they also were in both FZF18's and CHQ18's heard but undecided appeals which the Chief Justice determined had to be reallocated from the original docket judge to me. But, once those reallocations occurred, the original docket judge in each matter was unable to continue with, or to give judgment in, it. In any event, that is certainly so in the appeals of FZF18 and CHQ18 because the original docket judge had resigned her commission effective on 1 August 2023 and so had not given, and thereafter no longer had power to give, judgment in either appeal, which I heard on, respectively, 17 and 18 August 2023. 29 Given that Jackman J proceeded to give reasons and make final orders determining the re-docketed matter in Smart Education [2023] FCA 826, his Honour must have been satisfied that, first, he, and not the original docket judge, had the judicial power to do so and, secondly, the original docket judge was, by at least the time at which he made final orders, unable to give judgment in that proceeding within the meaning of s 10(2) of the Costs Act. But, of course, no party before Jackman J seems to have claimed to have suffered any pecuniary prejudice as a result of the original docket judge's inability to decide the matter, and his Honour decided it on the same material as was before her Honour. 30 In my opinion, each of FZF18 and CHQ18 acted reasonably in seeking to argue his appeal before me despite the earlier hearing before her Honour. In the exercise of the discretion under s 10(2) of the Costs Act I will grant a certificate to each of them: see Bullock 5 FCR at 477. As CHQ18's former legal representatives would be the beneficiaries of any payment that the Attorney-General made in consequence of the issue of a certificate, I will include in the certificate a recommendation that the costs be paid to them: see QGC Pty Ltd v Alberts (No 4) [2022] FCA 1590 at [67]-[68], [75] per Rares J; Roam Australia Pty Ltd v Telstra Corporation (trading as Telecom Australia) [1997] FCA 980 at pp 4-6 per Lehane J; Ex Parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 at 100, 103, 107-108 per Jordan CJ.

Conclusion 31 For these reasons, I will order that, first, in CHQ18's appeal, CHQ18 pay the Minister's costs fixed in the sum of $10,145 and, secondly, each of FZF18 and CHQ18 be granted a certificate under s 10(2) of the Costs Act. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.