EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 11 August 2022
• Neutral Citation: [2022] FCA 926
• Date: 11 August 2022
• Court: Federal Court

Federal Court of Australia

EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FCA 926

Appeal from:	EIL18 v Minister for Immigration & Anor [2020] FCCA 2675
File number(s):	WAD 204 of 2020
Judgment of:	KENNY J
Date of judgment:	11 August 2022
Catchwords:	COSTS – appeal from Federal Circuit Court – where appellant succeeded on new ground – costs award at first instance substantially greater than that for which Division 1 of Part 3 of Schedule 1 of lower court’s Rules provided – appellant unrepresented at first instance hearing – whether first instance costs order should be set aside or costs award on appeal offset against costs award below – first instance costs award set aside – parties to bear own costs of proceedings below
Legislation:	Federal Circuit Court of Australia Act 1999 (Cth), s 79 Federal Circuit Court Rules 2001 (Cth), rr 21.02(2), 44.15, Pt 44, Div 1 of Pt 3 of Sch. 1 Federal Court of Australia Act 1976 (Cth), s 43 Migration Act 1958 (Cth)
Cases cited:	AJQ16 v Minister for Immigration and Border Protection (No 2) [2018] FCA 389 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd. (No 2) [2015] FCAFC 166; 235 FCR 366 BAU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1169 BCH17 v Minister for Immigration and Border Protection [2018] FCA 300 BCR16 v Minister for Immigration and Border Protection (No 2) [2017] FCAFC 120 Chan v Minister for Immigration and Border Protection [2018] FCA 1323 CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467 CKV16 v Minister for Immigration and Border Protection [2019] FCA 342 DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178; 260 FCR 447 Hona v Minister for Immigration and Border Protection [2018] FCA 1564 House v The King [1936] HCA 40; 55 CLR 499 Khan v Minister for Immigration and Border Protection [2017] FCCA 3158 Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; 148 ALD 507 NAOY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 275 P & C Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales [1973] 2 NSWLR 366 Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 Snedden v Republic of Croatia (No 2) [2009] FCAFC 132 Summers v Repatriation Commission (No 2) [2015] FCAFC 64 SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 979 SZRTP v Minister for Immigration and Citizenship (No 2) [2013] FCCA 711 SZUVZ v Minister for Immigration and Border Protection [2015] FCCA 2346
Division:	General Division
Registry:	Western Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	31
Date of hearing:	Determined on the papers
Counsel for the Appellant:	Mr M Albert (pro bono)
Counsel for the First Respondent:	Mr G Johnson
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		WAD 204 of 2020
BETWEEN:	EIL18 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by:	KENNY J
DATE OF ORDER:	11 August 2022

THE COURT ORDERS THAT:

1. The first respondent pay the appellant’s costs of the appeal, as agreed or assessed.

2. Order 2 made by the Federal Circuit Court of Australia on 18 August 2020 be set aside; and in lieu thereof, it be ordered that there be no order as to the costs of the proceeding in that Court.

3. The parties bear their own costs in relation to the making of these orders.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY J:

1. On 27 June 2022, the Court made orders, including that the appeal be allowed, and published its reasons for judgment: see EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 736. At the same time, an order was made for the parties to file and serve submissions as to the disposition of the costs of the appeal and, if relevant, the costs of the first instance proceeding. The first respondent (the Minister) and the appellant both filed costs submissions on 11 July 2022 in conformity with these orders.

2. After these submissions were filed, a further order was made to allow the Minister to address a particular issue. The appellant had raised the issue in his submissions but the Minister had not had an opportunity to address it. In conformity with this order, the Minister filed additional submissions.

3. Under s 43(2) of the Federal Court of Australia Act 1976 (Cth) (the Act), the disposition of costs is at the discretion of the Court. This discretion must, of course, be exercised judicially having regard to the applicable principles and the justice of the case in all the circumstances: see Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 at [9]; Summers v Repatriation Commission (No 2) [2015] FCAFC 64 at [13]-[14]. Ordinarily, costs follow the event. That is, a successful litigant receives costs in the absence of special circumstances justifying some other costs order: see, for example, Ruddock v Vadarlis (No 2) at [11].

4. If an appeal succeeds, then in the ordinary course the Court will order the respondent to pay the costs of the appeal and of the proceeding at first instance: Ruddock v Vadarlis (No 2) at [16]. This is not an invariable rule, however. The discretion conferred on the Court allows it to take account of the particular circumstances of the case when making an order for costs.

5. In conformity with these principles, the parties accepted that the respondent Minister should pay the appellant’s costs of the appeal. In view of this and the fact that there is nothing disclosed in the circumstances of this appeal that would lead me to depart from this usual order as to costs, I would order that the first respondent pay the appellant’s costs of the appeal, as agreed or assessed.

6. The dispute with respect to costs concerns the costs order made by the primary judge on 18 August 2020.

7. The appellant submitted that the costs order made by the primary judge in the Federal Circuit Court should be set aside or vacated. In the alternative, the appellant submitted that the costs below should be limited to the amount permitted by the Federal Circuit Court Rules 2001 (Cth) as applicable when the order was made (Federal Circuit Court Rules): that is, the costs order should be for the appellant’s costs of the appeal, less $7,467 (and not the amount of $12,000 fixed by the primary judge). The appellant made two separate arguments in support of his submissions.

8. First, the appellant contended that the Minister could not “maintain the position that the Respondents are entitled to any costs” of the proceeding before the primary judge since the Minister had failed to act as a “model litigant” with respect to an “unrepresented and untrained” litigant. In written submissions, citing P & C Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales [1973] 2 NSWLR 366 at 383 and Hona v Minister for Immigration and Border Protection [2018] FCA 1564 at [17], the appellant submitted that:

The Court’s role in circumstances such as these should be understood alongside the role of the only represented party before it. As a manifestation of the Crown,...