Price v Minister for Immigration, Citizenship and Multicultural Affairs

1. Subject to order 2, the applicant do pay 80% of the costs of the first respondent, such costs to be assessed by a registrar if not agreed.
2. There be no order as to the costs of determining the question of the appropriate order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Ms Clarissa Price sought review in this Court of a decision by the Administrative Appeals Tribunal affirming a decision by a delegate of the Minister not to exercise the power conferred by s 501CA(4) of the Migration Act 1958 (Cth) to revoke the cancellation of her visa. She also sought the issue of a writ of habeas corpus on the basis of a claim that the cancellation of her visa was not lawful. Her application was dismissed. 2 Ms Price submits that if a costs order is made it should be an order that she pay 50% of the reasonable costs of the Minister being $4,185.65 (or alternatively as agreed or assessed). The figure proposed is 50% of the costs that might be awarded under the relevant item that applies in the Federal Circuit and Family Court of Australia (Circuit Court). 3 The Minister submits that the appropriate costs order is an order that the applicant pay the Minister's costs fixed in the amount of $30,000. The amount is sought to be justified by a very brief affidavit as to the actual legal fees incurred by the Minister being $10,197 'for fees worked' and $24,477.13 'for Senior Counsel and Counsel fees'. Erroneously, the figure of $30,000 is submitted by the Minister to amount to reducing the fees actually incurred 'by approximately 50%'. In the alternative to an order for costs in the amount of $30,000, the Minister seeks an order that the applicant pay his costs as taxed or agreed. 4 The award of costs is discretionary: s 43 of the Federal Court of Australia Act 1976 (Cth). The discretion is unconfined, but must be exercised judicially, that is according to relevant considerations and taking account of the contextual features and facts of the litigation: Kazar (Liquidator) v Kargarian; In the matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136; (2011) 197 FCR 113 at [4]. Settled principle guides the exercise of the discretion which is to be exercised judicially: Oshlack v Richmond River Council (1998) 193 CLR 72 at [65] (McHugh J, Brennan CJ agreeing), [134] (Kirby J). Generally, the discretion is exercised in favour of the successful party: Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53 at [6]. The exercise of the discretion involves the making of a broad evaluative judgment and factors other than success may have a significant claim on the exercise of the discretion: Gray v Richards (No 2) [2014] HCA 47 at [2]. 5 As to whether there should be a costs order in favour of the Minister and whether any such order should be limited to 50% of the Minister's costs, I have had regard to the following matters: (1) If the application had been confined to an application for review then the appropriate exercise of discretion would have been for the applicant to pay the Minister's costs. (2) The application raised an arguable basis for the habeas corpus claim but after those grounds were formulated a decision was delivered by a Full Court of this Court which rejected similar contentions to those advanced to support the claim. (3) In the result, at the oral hearing only a formal submission was advanced to support the habeas corpus claim. (4) The Court was invited to make some factual findings as to matters that formed the basis of the habeas corpus claim (for the purposes of any argument on appeal as to the claim) but declined to do. (5) Although there are cases where the Court has had regard to the fact that a claim made concerned the liberty of a person in deciding how to exercise the discretion as to costs in a particular case, there is no rule or principle requiring such an approach in all such cases: Te v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 15 at [74]-[81] (French, Sackville and Hely JJ). (6) Where the subject matter of a particular case concerns the exercise of a public power so as to deprive a person of their liberty, the concern that there should be 'no chilling effect on responsibly conducted and arguable proceedings with such subject matter' is also a matter that may bear upon the exercise of the discretion in a particular case: DBE17 v Commonwealth of Australia (No 2) [2018] FCA 1793 at [23] (Mortimer J). (7) The public importance for the administration of migration matters more generally of a point raised in a particular case may be a reason for confining the extent of any costs award against a losing party in the circumstances of the particular case: BKW17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCAFC 8 at [6] (Allsop CJ, Burley and O'Callaghan JJ). 6 The Minister relies upon the exercise of the discretion to award costs to the Minister in a single case where there was both an application to review a decision of the Tribunal and an application for habeas corpus. The present case falls to be determined by reference to the circumstances that pertain in the present instance. The Minister's reliance upon the particular exercise of discretion in a single other instance was misplaced. 7 I am persuaded that there should be some allowance for the nature of the arguable claim to relief by way of habeas corpus. However, it should reflect the fact that most of the costs of the hearing itself concerned the application for review. I would allow a reduction of 20%. 8 As to quantum, if there was a proper basis to assess those costs on a lump sum basis then they could have been fixed. However, the bare evidence provided of the total amount of fees actually incurred without any further explanation taken, together with the amount of costs sought which substantially exceeds lump sum orders usually made in cases of the present kind means that I am not persuaded that I should undertake a lump sum assessment. Further, I am not persuaded that the costs should be assessed by reference to the quantum of fees that would have been applicable in the Circuit Court. The proceedings were required to be brought in this Court and should be assessed on that basis. 9 There should be an order that the applicant pay 80% of the costs of the Minister such costs to be assessed by a registrar if not agreed. To be clear it would be open to the Minister to seek the assessment on a lump sum basis by providing appropriate information for such an assessment to the registrar. I would make no order as to the costs of determining the question of the appropriate order as to costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.