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

Principles 4 The principles to be applied are well-established and can be succinctly stated. The Court's power to award costs is discretionary: s 43 of the Federal Court of Australia Act 1976 (Cth). Ordinarily, the successful party is entitled to its costs in the absence of special circumstances justifying some other order: see, eg, Plaintiff B9/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 27 at [5] (Kenny, Edmonds and Rangiah JJ) and cases cited therein. 5 In Queensland North Australia Pty Ltd v Takeovers Panel (No 2) (2015) 236 FCR 370, the Full Court (Dowsett, Middleton and Gilmour JJ) surveyed the key authorities and stated at [11] that [the] decisions treat the success or failure of the relevant party as being the starting point in consideration of the question of costs. However they contemplate at least three distinct categories of situation in which a successful party might be deprived of costs, or even ordered to pay the costs of the other side. One such category is where the applicant has been only partially successful in that it has not obtained all of the relief sought. The second category is where a party has succeeded in obtaining the relief sought, but has not succeeded on all bases (factual or legal) upon which it sought such relief. Of course, it is possible that a particular outcome will fall into both categories. A third category involves consideration of the successful party's conduct of the case.

Consideration 6 In the circumstances of this appeal, the parties ought to bear their own costs of the appeal. This is a matter in which it is appropriate to have regard not only to the ultimate outcome of the appeal, but also to the parties' relative success on the issues raised and determined in the appeal. 7 Both parties were successful on substantial issues. The Minister was ultimately successful on the dispositive issue: materiality. As a result, the Appellant did not obtain the relief he sought. However, we also found that the Tribunal fell into error on all grounds advanced by the Appellant's notice of appeal. The Appellant was therefore largely successful on appeal against the primary judge's conclusion on substantial legal issues. These were issues that were contested by the Minister, and on which the Minister lost. They were also issues that were the subject of written submissions and submissions at the hearing before us. 8 While the issues on which the Minister succeeded were the dispositive issues, both parties succeeded on substantial issues. Accordingly, in the circumstances of this case, each party should bear its own costs of the appeal. 9 We also do not consider that the Minister's late filing of a notice of contention warrants embarking on an attempt to adjust the disposition of costs by reference to that circumstance, as the Appellant suggested we ought. The Appellant noted, in his written submissions on the appeal, that the Minister had not filed a notice of contention seeking to uphold the primary judgment on the basis that the errors alleged by Grounds 1 and 2 were not material. After the Appellant took the position that the issue of materiality had to be raised by the Minister by a notice of contention, the Minister duly did seek, and obtained, leave to file a late notice of contention. While the notice of contention came about as we have described, in order to obtain the relief he sought quashing the Tribunal's decision, the Appellant would always have had to satisfy the Court that the errors he alleged were material. Accordingly, we do not consider that the late filing of a notice of contention by the Minister warrants any adjustment to the costs disposition we favour. 10 The Appellant and the Minister both submitted that no orders should be made disturbing the costs order of the primary judge. We agree that the costs order of the primary judge ought not be disturbed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Markovic, Thomas and Button.