MDXJ v Secretary, Department of Social Services

1. The applicant pay the first respondent's costs fixed in the amount of $750.00 and the execution of this order be stayed until 1 March 2021 or until further order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BESANKO J: 1 This is an application for costs in relation to an unsuccessful application for discovery. The first respondent seeks the costs of the unsuccessful application fixed in the amount of $750.00. The applicant opposes an order for costs. He does so on three grounds. 2 First, he claims that the first respondent is partially at fault in this matter due to the failings in the tier 2 T documents and that both parties share mutual "quality obligations as regards the preparation of the Appeal Books". He claims that it is in the public interest that the first respondent be given feedback that will lift the standards of T document production. This is not a reason to refuse an order for costs in favour of a successful party. 3 Secondly, the applicant claims that the first respondent's action in refusing discovery without the provision of an explanation was contrary to the "spirit" of r 20.11 of the Federal Court Rules 2011 (Cth). In the circumstances, the first respondent could have avoided the application and an order that each party meet their own costs is appropriate. Again, this is not a reason to refuse an order for costs. The first respondent has been successful in resisting the applicant's application for discovery. 4 Thirdly, the applicant claims that a costs order against him above $100.00 would be "unavoidably and seriously punitive in nature on the basis of financial hardship and given [his] precarious circumstances". He provides details of those circumstances. Impecuniosity and, therefore, futility is not a reason to refuse to make an order for costs (Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [34]-[35]). 5 In the circumstances, it is an appropriate case for costs and I will make an order that the applicant pay the first respondent's costs fixed in the amount of $750.00. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.