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

1. There be no order as to the costs of the hearing adjourned on 8 March 2023.
2. The first respondent pay the applicant's costs of the proceedings, including any reserved costs, as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

FEUTRILL J: 1 On 29 September 2023 I made orders in favour of the applicant on his originating process and reserved costs: Ngatoko v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1165. Although counsel who appeared for the applicant acted pro bono both the applicant and the first respondent (Minister) agree that a costs order should be made in favour of the applicant in respect of the costs of the proceedings. Therefore, I act on the assumption that the applicant has incurred some liability to pay legal fees and (or) disbursements to his legal representatives. However, the parties disagree in relation to which party should be responsible for the costs of an adjournment of the final hearing of the matter that was originally listed on 8 March 2023. 2 Pursuant to orders I made on 31 August 2022 the applicant's originating process was amended to include a new ground of review (Ground 1A) to the effect that the second respondent (Tribunal) lacked jurisdiction because the original decision of the delegate to cancel the applicant's visa under s 501(3A) of the Migration Act 1958 (Cth) was legally ineffective. The applicant contended that decision was legally ineffective because the delegate had purported to cancel the applicant's visa on the basis that he had been sentenced to an aggregate term of imprisonment for multiple offences of 12 months or more and, as such, the applicant did not pass the character test by operation of s 501(6)(a) (substantial criminal record) on the basis of s 501(7)(c) (sentenced to a term of imprisonment of 12 months or more). The applicant contended that an aggregate sentence for multiple offences was not a sentence to a term of imprisonment within the meaning of s 501(7)(c) of the Act. The final hearing of the originating process was listed for 8 March 2023. 3 On 22 December 2022 the Full Court of the Federal Court of Australia delivered judgment in Pearson v Minister for Home Affairs [2022] FCAFC 203; (2022) 295 FCR 177. The Court (Allsop CJ, Rangiah and SC Derrington JJ) (at [40]-[49]) concluded that a person sentenced to a term of imprisonment of more than 12 months based on an aggregated sentence 'was not sentenced (for an offence) to a term of imprisonment of 12 months or more' and, as such, fell outside the meaning of 'substantial criminal record' in s 501(6)(a) and s 501(7)(c) of the Act. 4 On 7 February 2023, pursuant to orders for directions made in the proceedings, the applicant filed his written submissions in support of his amended originating process. Those submissions included submissions relying on Pearson in support of Ground 1A. 5 On 17 February 2023 the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) came into effect. The effect of the provisions of the Aggregate Sentences Act was to insert s 5AB into the Act which has the effect that s 501(6)(a) and s 501(7)(c) apply to aggregate sentences for more than one offence. Item 4 of Sch 1 of the Aggregate Sentences Act had the effect of validating the decision to cancel the applicant's visa in April 2020 on the basis of the aggregate 20-month sentence imposed in February 2020 for multiple offences. 6 On 23 February 2023, pursuant to orders for directions made in the proceedings, the Minister filed written submissions in opposition to the applicant's amended originating process. Those submissions included submissions relying on the Aggregate Sentences Act in opposition to Ground 1A. 7 On 8 March 2023 the applicant applied for and was granted an adjournment of the final hearing of his originating process for the purpose of considering and taking legal advice on the consequences and validity of the Aggregate Sentences Act. The Minister did not support, but did not oppose, that adjournment. The Minister made no submission, at that time, to the effect that an adjournment should not be granted other than on the basis that the Minster have costs thrown away consequent on the adjournment. However, the costs of 8 March 2023 were reserved. 8 The point of controversy regarding the costs of the proceedings concerns the costs thrown away consequent on the adjournment on 8 March 2023. The Minister submits that he should have those costs. The applicant submits that costs should follow the event, including the costs reserved on 8 March 2023. 9 The applicable principles concerning the Court's power and discretion to make a costs order are well-established and need not be set out at any length. In short, '[s]ection] 43 of the Federal Court of Australia Act is a broad and ample power not to be read down otherwise than by judicial principle conformable with the amplitude of the power': DSE (Holdings) Pty Ltd v InterTAN Inc (2004) 51 ACSR 555; [2004] FCA 1251 at [14] (Allsop J). The power is usually exercised after a hearing on the merits and, as a general rule, the successful party is entitled to a favourable costs order. 10 In this case there is no dispute that the applicant is entitled to a costs order in his favour, however, the Minister contends, in effect, that the adjournment on 8 March 2023 was an indulgence of the Court and, in such circumstances, it is usual for the Court to order that the party or parties affected by the adjournment have the costs thrown away. However, costs even in those circumstances remain a matter of discretion and the appropriate order subject to the particular circumstances in which the indulgence has been requested and granted. By way of example, Wheeler JA (Steytler P and Pullin JA, agreeing) expressed this principle as follows in Stanley v Layne Christensen Company [2006] WASCA 56 (at [52]): The general rule is, and should remain, that where a party is seeking the indulgence of the court, that party will be required to pay the costs of the application, including costs thrown away, and will not normally receive the costs of the application. However, it is also a normal rule that the Court will have regard to the extent to which it might be said that costs were unnecessarily incurred by a party, and will have regard to the reasonableness of the party's conduct in determining how costs should be awarded. In particular, where a contested application, even for an indulgence, is unnecessary because a party acting reasonably would have consented to appropriate orders, the party who has caused the costs to be unnecessarily incurred will not obtain its costs of such a proceeding merely because the application is for some indulgence. 11 The applicant and the Minister filed written submissions on the question of costs. Neither party filed any affidavit evidence. Therefore, there was no evidence of the extent to which, if at all, there had been any conferral between the parties or notice given by the applicant to the Minister of his intention to apply for an adjournment on 8 March 2023. 12 The enactment of the Aggregate Sentences Act in early February 2023 was a change in circumstance sufficiently proximate to the hearing listed on 8 March 2023 to warrant granting the applicant an adjournment to consider his position. Ultimately, the applicant abandoned Ground 1A. To the extent that the Minister incurred costs preparing written submissions addressing Ground 1A and relying on the Aggregate Sentences Act to respond to that ground, given that the Aggregate Sentences Act came into effect after the applicant had amended his originating process, the judgment in Pearson was delivered and the applicant had filed his written submissions, I do not consider it would be reasonable to place the cost burden of the Minister preparing written submissions addressing Ground 1A on the applicant. I also consider that it was reasonable for the applicant to take some time to consider his position before deciding to apply for an adjournment. However, the Minister may have incurred some costs preparing for the hearing on 8 March 2023 that would not have been incurred had the applicant given the Minister notice of his intention to apply for an adjournment earlier than the time at which that notice was, in fact, given. The question is whether it is reasonable that the Minister should have those costs. 13 As there is no evidence before the Court of any earlier notice, I conclude that the first notice the Minister had of the applicant's intention to apply for an adjournment was when the applicant applied for an adjournment at the hearing on 8 March 2023. Again, as there is no relevant evidence before the Court concerning events before 8 March 2023 and no explanation for the applicant failing to give the Minister earlier notice, I consider that the applicant should have given the Minister notice before 8 March 2023. However, on the evidence, I am not in a position to form a view on any point in time at which the applicant should have been able to give that notice. Therefore, I am not able to determine from what point in the Minister's preparation for the hearing costs could be said to have been 'thrown away'. 14 In the circumstances, on balance, the appropriate order is that there be no order as to the costs of 8 March 2023. That is, neither the applicant nor the Minister should be entitled to the costs of preparing for and attending on 8 March 2023. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.