Galecio v Minister for Immigration and Citizenship

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Today the Court delivered reasons for judgment in these proceedings in which the application was dismissed: Galecio v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1029 (primary judgment). Consequent upon that dismissal the solicitor for the Minister seeks an order that the applicant pay the first respondent's costs fixed in the sum of $26,000.
2. In support of that costs application was read an Affidavit of Annabelle Victoria Jean Wilford, made on 2 July 2025 which was handed up in Court this afternoon at the hearing (Wilford costs Affidavit). I am informed from the Bar table that a copy was provided to the solicitor for the applicant in advance of this afternoon's judgment fixture. The solicitor for the Minister acknowledges that the quantum of party/party costs sought, is approximately three times the scale amount for a proceeding in the migration jurisdiction which concludes at (or as the result of[1]) a final hearing: see Schedule 2, Part 2, Division 1, Item 3 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) (FCFCOA costs scale). The basis for the extent of the costs incurred is set out in the Wilford costs Affidavit and primarily said to have been caused by the preparation of evidence (specifically, the matters which underpinned the preparation of the second Wilford Affidavit: see primary judgment at [5], [28], [32] and [41]).
3. The costs application is opposed on several bases. Firstly, that the amount sough is almost three times the scale amount. That, in and of itself, is not a factor which would necessarily cause the Court to not award costs, if those costs had been properly incurred and represented a fair indemnity and in the proper exercise of the broad discretion of this Court to award costs: see FJS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 433.
4. Next, the applicant says that the costs of an application in a proceeding, which was returned on 16 May 2024 in lieu of the initially scheduled hearing, ought to be his costs. I am not satisfied that that is the case but rather they should be costs in the cause, and fall to the Minister in circumstances where the need for that adjournment was ultimately created by late-filing of evidence by the applicant. In any event, this case is resolved (as the parties will see from the primary judgment) by reference to the second Wilford Affidavit. As such, the resolution of these proceedings was specifically assisted (in accordance with the overarching principle of this Court's practice and procedure) by that additional time and the additional evidence which was able to be furnished as a result.

1. Lastly, the applicant says that the conduct of the Minister seeking costs in the sum of $26,000 is contrary to the obligation of the Commonwealth to act as a model litigant (Commonwealth model litigant obligation): see Appendix B of the Legal Services Directions 2017 (Cth) (which are made under s 55ZF of the Judiciary Act 1903 (Cth)).
2. Despite multiple enquiries by the Court today as to which aspect/s of the Commonwealth model litigant obligation the quantum of the costs application was said to be contrary, no such information was provided by the applicant's solicitor beyond an assertion that:

for the respondent to be seeking costs in that order of magnitude is - it exploits the financial circumstances of [the applicant]

1. This was, perhaps, intended to be a reference to paragraph [2(f)] of the Commonwealth model litigant obligation which provides:
   1. The obligation to act as a model litigant requires that the Commonwealth and Commonwealth agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or a Commonwealth agency by:

(f) not taking advantage of a claimant who lacks the resources to litigate a legitimate claim

1. No material has been placed before the Court as to the financial circumstances of the applicant relevant to the submission made at [6] above.
2. Compliance with the Legal Services Directions is not enforceable except by (or upon application by), the Commonwealth Attorney-General: see ss 55ZG(2) of the Judiciary Act. While it is the case that courts have often addressed breaches of an obligation to act as a model litigant by measures which sound in costs, in the instant case the applicant alleges the obligation is breach by the seeking of a costs order itself or, more specifically, the quantum of the order sought.
3. From the Wilford costs Affidavit, and the matters addressed in the primary judgment, I am satisfied that the steps taken by the Minister in the preparation of the case were appropriate and proportionate to the ground raised for the applicant. That the evidentiary task was onerous, and therefore became expensive, was an exigency of the litigation consequent on the terms in which the ground of review was expressed. Relevantly also the applicant was represented in advancing that ground. In circumstances where an applicant raises a ground which gives rise to the factual and evidential complexity of the kind which occurred in this particular case, and where the Minister is able to meet that case by the provision to of evidence to the applicant and the Court, it cannot then be said that the Minister has failed to comply with (any aspect of) the model litigant obligation simply by having incurred legal fees in order to do so, even if those legal fees go well beyond the FCFCOA costs scale or an amount which the applicant might personally consider to be reasonable or affordable in the circumstances.
4. As was observed in Brandon v Commonwealth of Australia [2005] FCA 109 at [11] by his Honour Whitlam J:

While the Commonwealth is no doubt a behemoth of sorts, it is not obliged to fight with one hand behind its back in proceedings. It has the same rights as any other litigant notwithstanding it assumes for itself, quite properly, the role of a model litigant.

1. The Minister was entitled to resist the ground of review, and to expend time (and therefore funds) in the preparation of the evidence by which to do so. It was to the benefit of the resolution of the applicant's ground that this occurred.
2. I am not satisfied there has been any breach of the Commonwealth model litigant obligation by the Minister in respect of costs, or at all. The allegation ought not to have been in such bare and unconsidered terms as were expressed to the Court today.

1. The parties are opposed in terms of the costs question. Where there is significant dispute between them as to quantum it is not for this Court to undertake a cost assessment for itself. I do certainly recognise that there are aspects of this case, in particular, the preparation of the second Wilford Affidavit, which would mean the costs would be higher than those of a matter in which such an evidentiary task was not undertaken. However, it is not for the Court to go on a line-by-line exercise to assess those costs for itself. Accordingly, I am of the view that the Minister should have his costs but that if the parties cannot, within an appropriate time, agree as to the quantum of those costs, the question should proceed for assessment pursuant to the taxation process allowed for in Part 40 of the Federal Court Rules 2011 (Cth), pursuant to r 1.06(2) of the Rules of this Court.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] ENI18 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 460 at [10]