FEDERAL COURT OF AUSTRALIA

CHF16 v Minister for Immigration and Border Protection (No 2) [2017]

FCAFC 215

ORDERS

THE COURT ORDERS THAT:

1.    In place of the costs order made by the primary judge, the first respondent pay the applicants’ costs, as agreed or taxed.

2.    The first respondent pay each of the appellants’ costs of the appeal, as agreed or taxed, those costs not to exclude the work related to the argument about separate representation of the two appellants.

3.    Pursuant to r 4.19(3) of the Federal Court Rules 2011 (Cth), the first respondent pay the costs referred to in order 2 directly to each of the pro bono counsel.

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

REASONS FOR JUDGMENT

THE COURT:

1    The Court made orders on 29 November 2017 allowing the appeal, setting aside the orders of the Federal Circuit Court of Australia made on 6 March 2017 and, in place of those orders, setting aside the decision of the Immigration Assessment Authority (the Authority) dated 25 July 2016: CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192.

2    The Court reserved the question of the costs at first instance and on appeal. The Court indicated, at [50], its provisional view that those issues were, in relation to the costs at first instance, whether the general principle that the ultimately unsuccessful respondent should pay the applicant’s or applicants’ costs should not apply in light of a shift in the basis of the ultimately successful attack on the Authority’s decision and, on the appeal, whether the Minister should pay the additional costs occasioned by the separate representation of the appellant father and the appellant son.

3    The costs order at first instance was that the present appellants pay the costs of the Minister, fixed in the amount of $7,206.00.

4    The Minister submitted that the Court should not disturb the costs order made below, referring to Snedden v Republic of Croatia (No 2) [2009] FCAFC 132 at [3]-[4]. The appropriate order with respect to the costs of the appeal, the Minister submitted, was that he should pay the first and second appellants’ costs of the appeal limited to one set of costs as between the appellants, referring to Richard Brady Franks Ltd v Price [1937] HCA 42, 58 CLR 112 at 136, and only in relation to work concerned with error in the decision of the primary judge and the second respondent. By this qualification it appeared that the Minister meant that the costs of the appeal should exclude the work related to the argument about separate representation of the two appellants.

5    As to the costs order made below, the Minister submitted the appeal turned on a question of statutory construction that was not the way in which the case was argued at first instance, and none of the arguments made at first instance had been successful.

6    As to the costs of the appeal, the Minister submitted that it was well-established that the Court will usually only allow one set of costs where parties have identical interests. In this case, the Minister submitted, there was no basis for the appellants to be separately represented in the appeal as their interest both before the primary judge and on appeal were relevantly the same.

7    Counsel for the appellant father adopted the submissions of the appellant son in respect of the costs of the proceedings below. The appellants succeeded in setting aside the decision below on, effectively, the same ground as was argued at first instance – that the Authority misconstrued s 473DD in conflating the timing of the events constituting the “new information” with “exceptional circumstances”. The appropriate order was that the first respondent pay the appellants’ costs of the proceedings below.

8    As to the costs of the appeal, counsel for the appellant father submitted that for the reasons set out in the appellant son’s submissions, this was a case where it was entirely appropriate for the appellants to be separately represented. Counsel for the appellant father submitted that even if it was not, ultimately, necessary for the appellants to have separate representation, it was entirely appropriate for two counsel to be briefed to represent both appellants’ interests in circumstances where the Court had allocated the matter to a Full Court hearing and the Court had made a pro bono referral for each appellant. Counsel sought an order in the terms contemplated by r 4.19(3) of the Federal Court Rules 2011 (Cth), that is, that the costs be paid directly to pro bono counsel. Further, any duplication of legal assistance because of the separate representation was a matter for taxation.

9    Counsel for the appellant son submitted that the first respondent should pay the appellants’ costs of the proceedings below. The submissions below revealed that the construction of s 473DD adopted by the Authority was a matter argued before the primary judge. So much was acknowledged in the judgment below at [63] and [65].

10    As to the costs of the appeal, counsel for the appellant son drew attention to the amended referral certificate dated 3 November 2017, in contrast to the original referral certificate which was for both the appellant father and the appellant son. Counsel submitted that there was a potential conflict of interest between the appellant father and the appellant son and it arose through the actions of the appellant father in concealing certain information from the appellant son. Counsel submitted that prior to the determination of the appeal, the position of the Minister was not that the appellants had “identical interests,” but that the appellant son’s separate interests had not been raised below. Further, [32]-[37] of the Minister’s submissions (which were abandoned following the hearing of the appeal) outlined the Minister’s argument that the statutory construction of 473DD(b) required attention to the knowledge of an applicant in determining whether there were “exceptional circumstances”. That argument raised the potential conflict between the appellant father and the appellant son. As events had transpired, the resolution of the appeal did not involve the consideration of the argument raised by the Minister, however this argument was implicitly accepted in the reasoning of the primary judge at [66]. Counsel for the appellant son also sought an order under r 4.19(3) of the Federal Court Rules.

11    At the commencement of the hearing of the appeal, an application for leave for the appellants to be separately represented was made, consistently with Elphick v Westfield Shopping Centre Management Company Pty Ltd [2011] NSWCA 356 at [10]. That application was opposed by the Minister. At the hearing of the appeal, the Court indicated that it would rule on that application, if necessary, in the Court’s reasons. It was not necessary to do so in the judgment delivered on 29 November 2017.

12    It was submitted on behalf of the appellant son that the appellant father had not made a claim for protection on behalf of the appellant son despite being aware of circumstances that could give rise to a claim for protection; the appellant son was not aware of the circumstances, known to the appellant father and concealed by the appellant father from the appellant son, that might have given rise to his ability to make his own claim for protection; and the nature of “exceptional circumstances” in s 473DD(a) of the Migration Act 1958 (Cth) as they applied to the appellant father might well be construed differently from those as they apply to the appellant son.

13    In relation to the costs at first instance, we note that Ground 1 of the application before the primary judge was that the Authority failed to take “relevant considerations” into account when inferring that there were no “exceptional circumstances” to justify considering new information, referring to [5] of the Authority’s reasons. We also note that the primary judge, CHF16 & Anor v Minister for Immigration & Anor [2017] FCCA 405 at [59], said that the solicitor for the then applicants did not press the other ground, Ground 2.

14    In our opinion, the appeal to this Court succeeded on a basis that was sufficiently related to Ground 1 as argued before, and rejected by, the primary judge: see at [65] of the judgment below, as follows:

The solicitor for the applicants made reference to the first applicant’s vulnerability and to the first applicant’s fears of being imputed as being an LTTE supporter and to the first applicant’s particular circumstances in relation to the first applicant having been arrested on two previous occasions. Mr Hodges, the solicitor for the applicants submitted that there should have been an express reference to the first applicant’s particular circumstances and the whole of them in considering the exercise of power under s.473DD of the Act in determining whether there were exceptional circumstances to justify considering the new information. In exercising the power under s. 473DD of the Act, it is not necessarily for the Authority to set out all the first applicant’s circumstances in considering whether to exercise the power under s.473DD of the Act. On a fair reading of the Authority’s reasons, it is apparent that the Authority did take into account the first applicant’s claims in relation to considering whether there were exceptional circumstances to justify considering the new information.

The Authority’s reasons at [5] were at the forefront of the reasons of the Full Court allowing the appeal.

15    The exercise of the Court’s discretion in Snedden is distinguishable. The present appeal is not a case where “the ground on which the appellant succeeded had to be “excavated” from the material before the primary judge”: see Snedden at [3].

16    In the exercise of the Court’s discretion in the award of costs under s 43 of the Federal Court of Australia Act 1976 (Cth) we order that the first respondent pay the applicants’ costs at first instance, as agreed or taxed.

17    Turning to the costs of the appeal, in Richard Brady Franks Ltd Latham CJ referred, on the facts of that case, to whether there was any need for separate representation of any of the respondents and to whether there was any actual or possible conflict of interest between the respondents. Having found that there was not, Latham CJ said, and the order of the Court was, that the appeal should be dismissed with costs, but that only one set of costs should be allowed to the respondents.

18    The relevant principle is that the Court will not normally allow more than one set of costs to successful litigants where there is no possible conflict of interest between them in the presentation of their cases: see Dal Pont’s Law of Costs (3rd ed, LexisNexis Butterworths, 2013) at [11.52]. Similarly, and as the learned author there notes, Spigelman CJ, with whom Sheller and McColl JJA agreed, said in Van Eeden v Henry [2005] NSWCA 14; 62 NSWLR 301 at [33], with reference to the Court seeking to give effect to the overriding purpose of the rules being to facilitate the just, quick and cheap resolution of the real issues in civil proceedings:

One of the powers which the Court must exercise in such manner, is the power to award costs. In my opinion when exercising the discretion to award costs the Court should only do so in a way which accepts double representation where the requirements of justice require that to be done. I accept that such cases will arise but, in my opinion, would do so rarely.

19    In our opinion, the central question is whether there was any actual or possible conflict of interest between the appellants.

20    Stanley v Phillips [1966] HCA 24; 115 CLR 470, relied on by the appellants, concerned the briefing of two counsel. Nevertheless, we accept that the present question of separate representation is to be looked at from the point of view of the party who has to make the decision before the trial or, as here, the appeal.

21    In our opinion, there was at least a possible conflict of interest between the appellant father and the appellant son in the appeal so as to warrant an award of two sets of costs. Although counsel for each appellant made substantially similar submissions in relation to what turned out to be the dispositive issues, which were the meaning, in context, of the relevant paragraph of the Authority’s reasons and the proper construction of s 473DD, if it had been necessary for the Court to consider the separate potential “exceptional circumstances” of each appellant and what each of them had previously known, the conflict of interest would have been real. It follows that the costs of the appeal should not exclude the work related to the argument about separate representation of the two appellants.

22    In the exercise of the Court’s discretion in the award of costs under s 43 of the Federal Court of Australia Act, we order that the first respondent pay the appellants’ costs of the appeal on the basis that costs be allowed to each appellant. The costs of the appeal are not to exclude the work related to the argument about separate representation of the two appellants.

Associate:

Dated:    14 December 2017