Okoh v Minister for Immigration, Citizenship and Multicultural Affairs

CONSIDERATION 10 There was no disagreement that a successful party is ordinarily entitled to an order for costs in their favour, including in relation to interlocutory matters, unless special circumstances justify some other order. 11 It is without doubt that the Court retains a discretion to depart from that position. The discretion must be exercised judicially. 12 The appellant submitted that costs should follow the event. An order should be made that the Minister pay the appellant's costs of the interlocutory application. 13 We observed at [102] of the reasons for judgment that the application for adjournment was properly brought. The appellant submitted that this was not a special circumstance which would justify the Court exercising the discretion not to award the appellant his costs in relation to the failed interlocutory application. 14 The Minister submitted that circumstances exist to justify an order that each party bears their own costs of the interlocutory application. The Minister referred to the decisions in CQI18 v Minister for Home Affairs (No 2) [2021] FCA 1427 (CQI18) and AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1105 (AIO21). 15 In CQI18, Mortimer J (as her Honour then was) refused to order costs against the unsuccessful applicant where the application had "some purpose". In AIO21, Mortimer J accepted there had been a basis for the Minister taking the course which was taken with the result that it would not be appropriate for there to be any adverse costs consequences flowing from the Minister's decision to make the application. 16 The Minister submitted that there was utility in the Minister making the interlocutory application and pointed to the fact that the application was brought in response to the appellant raising a new ground of appeal just before the hearing of the appeal relying upon a novel point of law which had not previously been ruled on by any court and which was the subject of a pending judgment in another Full Court, a matter heard three months earlier. The Minister submitted that the outcome of the other matter may have had severe implications for this current matter and the Minister's application had purpose in the parties ventilating before the Court their respective positions on whether the appeal should proceed while the other matter remained outstanding. 17 In relation to the timing, the appellant pointed to the fact that he had lodged his notice of appeal without representation on 30 September 2022 with pro bono counsel having been appointed on 24 January 2023. It was submitted that, in circumstances where the appellant was unrepresented on the appeal and counsel was appointed shortly before the original submissions' filing deadline, it could not be said that the appellant himself should bear the costs burden because the new ground was not raised further in advance of the hearing. 18 As was expressed in the primary judgment, we are of the view that the Minister's application was properly brought - and served the purpose of assisting the Court by the parties ventilating their respective positions on whether the appeal should proceed while the other matter remained outstanding. 19 However, as the appellant submitted, there was a reason, due to the date of appointment of pro bono counsel, why the amended notice of appeal (incorporating the ground which had been argued before the previous Full Court) was lodged when it was. We agree that, in circumstances where the appellant was unrepresented on the appeal and pro bono counsel was appointed shortly before the original submissions' filing deadline, the appellant himself should not bear the costs burden because of the timing of the new ground. 20 Because the application made by the Minister served some purpose, and there was a clear basis for the Minister taking the course that the Minister did, it is our view that it would not be appropriate for there to be any adverse costs consequences flowing from the decision to make the application, even though the application was unsuccessful. 21 The appellant submitted that, if the Court is not minded to order that the Minister pay the costs of the interlocutory application, then no order as to costs should be made in respect of the costs of the interlocutory application, to avoid the otherwise unfair position that the appellant would be ordered to pay the Minister's costs for a voluntarily-made unsuccessful application to adjourn the final hearing. 22 The Minister submitted that it would be appropriate for each party to bear their own costs of the adjourned application. 23 In the circumstances we have outlined in relation to the application to adjourn the final hearing, the Court will order that the parties bear their own costs of and incidental to the interlocutory application. 24 In relation to the costs of the final hearing, costs should follow the event and, as has been submitted by each party, the appellant will pay the Minister's costs of and incidental to the proceedings on a standard basis. 25 The Court orders that:

1. The parties bear their own costs of and incidental to the interlocutory application.
2. The appellant otherwise pay the Minister's costs of and incidental to the proceedings on a standard basis. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Thomas, O'Bryan and McElwaine.