Keo v Minister for Immigration & Anor

1. Mr Markus, who appeared for the Minister, told the Court that it was the usual course of events for a costs order to be made in favour of a successful party, and submitted that the amount should be $14,000.00, including the costs of that day's hearing.
2. Mr Cockburn of counsel, who appeared for the applicant, submitted that this claim should be rejected. In support of his contention that no order for costs should be made, or that costs should be minimal, or below the scale, or not above the scale, he referred the Court to the decision of the High Court in Bodruddaza v Minister for Immigration and Multicultural and Indigenous Affairs[2] at [77]-[78].
3. Mr Cockburn submitted that the impugned provisions in this case made it one of very general importance, raising as it did novel Constitutional matters. He told the Court that no costs should be awarded so far as the validity of the impugned provisions was concerned and there should be a departure from the principle that costs should follow the event.
4. Turning to the question of quantum, Mr Cockburn submitted that the final hearing took one day. The Minister's claim is greatly in excess of the scale, and the only reason that the parties had to come back to Court to argue the question of costs was because the affidavit regarding costs was only served on the day the substantive decision was handed down.
5. Mr Cockburn then referred to the indemnity principle, which provides that costs may not be awarded beyond the amount of the loss. No basis is given in the affidavit for the estimate that the sum of $13,500.00 is likely to be awarded on a party and party basis on taxation.[3] There is no chance for the Court to check if there has been any breach of the indemnity principle. No bill of costs has been provided, nor have any tax invoices been submitted. In such a case, he submitted, the court has to rely on the scale or something less than the scale.
6. Mr Cockburn also raised the issue that the Minister had previously been represented by another firm of solicitors, Clayton Utz. The Minister's affidavit does not identify any amount claimed for any work performed by Clayton Utz before the carriage of the matter was transferred to the Australian Government Solicitor.
7. The primary question, however, he submitted, is whether or not the Court should make an order for costs at all.
8. Mr Markus, solicitor, submitted that no order for costs was made in Bodruddaza because it was regarded as a particularly significant case, in contrast to this matter. He referred the Court to _Singh v The Commonwealth[4]_and also De Silva & Ors v Ruddock[5]. There was no proper basis for the claim that the Court should depart from the principle that costs follow the event.
9. Mr Markus told the Court that the deponent to the affidavit, Ms Anniwell, was and had been present at court and was available for cross-examination on her affidavit had that been required. He further contended that the suggestion should not have been made that there may have been a breach of the indemnity principle.
10. In reply, it was submitted that the material before the Court was insufficient to decide whether the claim for costs was in breach of the indemnity principle or not.

1. In considering making an order for costs in favour of a party, the Court must approach the matter in two stages. First, the Court must decide whether to make an order for costs, and, if so, what should be the quantum of that order.
2. It is well-established in this jurisdiction that, as a general rule, costs will follow the event. However, there may be circumstances where such an order will not be made, where:
   • (a) the party normally entitled to seek a costs order chooses not to do so[6]; or
   • (b) the court decides that a costs order is inappropriate.
3. The High Court considered this question in Bodruddaza v Minister for Immigration and Multicultural and Indigenous Affairs[7]:
   • [77] There is no absolute rule with respect to the exercise of the power to award costs.[8] In Oshlack v Richmond River Council,[9] for example, reference was made to Liversidge v Anderson,[10] where in response to an intimation by the law Lords that, the case being one of "very general importance", costs should not be asked for, junior counsel[11] for the successful home secretary responded that, in those circumstances, he "should not dream" of asking for them.
   • [78] The present case is a case of very general importance, so far as the validity of s 486A is concerned. Not only should the minister not have the costs of questions 1 and 2, the minister should bear the costs of the plaintiff reasonably necessary for the determination of questions 1 and 2.[12]
4. It is noteworthy that their Honours decided that the matter was one of "very general importance" because s 486A of the Migration Act was held to be invalid. That is a different situation from the one here. There was a constitutional challenge to the validity of ss. 347(1)(b) and 348(1) of the Migration Act and to the validity of Regulation 4.10(1)(a) of the Migration Regulations which was unsuccessful.
5. In my view there was no issue of very general importance, nor was there any public interest or other special aspect of the case "that would justify a departure from the usual order and principle that costs are generally awarded to indemnify a successful party in litigation" (see De Silva & Ors v Ruddock[13] per Merkel J at 3).
6. The applicant should pay the first respondent's costs.
7. The applicant contends that, if costs are to be paid, they should be:
   • (a) minimal; or
   • (b) below the scale; or
   • (c) not above the scale.
8. Subrule 44.15(1) provides:
   • The Court may, in relation to a proceeding that is concluded, order that an unsuccessful party in the proceedings must pay the costs of a successful party in accordance with item 1 of Part 2 of Schedule 1.
9. Item 1 of Part 2 provides that if the proceeding is concluded at a final hearing the scale amount is $5000.00.
10. However, this is not mandatory. There are often matters in the migration jurisdiction where a figure below the scale is appropriate or where a figure well above the scale may be appropriate.
11. It is certainly the case that the vast majority of migration matters are ones where the Court can make a fixed costs order at the conclusion of the hearing. Most applications can be resolved in half a day to a day, and the scale is, in most cases, a reliable guide to the quantum of costs to be awarded.
12. However, not all matters fit into that category, and this is one that does not. This matter took a full day to argue, with lengthy and complex submissions and reference to a considerable number of authorities.

Mr Cockburn has complained that no itemised bill of costs has been provided and the affidavit contains insufficient detail to allow the court to assess how the sum of $13,500.00 claimed has been calculated. 13. In my view, without a more detailed breakdown of the way in which the costs claimed are calculated, the Court is not in a position to make more than a rough estimate of an appropriate figure, which is not an acceptable way to proceed. 14. For that reason, I consider that this is a matter where a bill of costs should be prepared for taxation by a Registrar of the Court.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM

[1] [2008] FMCA 1502

[2] (2007) 234 ALR 114; [2007] HCA 14

[3] Affidavit of Brin Ellen May Anniwell affirmed 20 November 2008 at [7]

[4] (2004) 222 CLR 322; [2004] HCA 43

[5] [1998] FCA 311

[6] See, for example, Minister for Immigration v Yong Zhao & Ors [2008] FMCA 1683 at [31]

[7] (2007) 234 ALR 114; [2007] HCA 14

[8] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 88 [40], 126-7 [143]; [1998] HCA 11; 152 ALR 83 at 94, 125; [1998] HCA 11 (Oshlack)

[10] [1941] UKHL 1; [1942] AC 206 at 283; [1941] all ER 338 at 387

[12] (2007) 234 ALR 114; [2007] HCA 14 at 129 [77]- [78]

[13] [1998] FCA 311