FEDERAL COURT OF AUSTRALIA

Anees v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 67

ORDERS

THE COURT ORDERS THAT:

1.    The First Respondent pay the Appellant’s costs of the appeal as agreed or as taxed.

2.    The order made on 8 February 2019 by the primary judge for costs in that proceeding not be disturbed.

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

REASONS FOR JUDGMENT

THE COURT:

1    On 2 March 2020 this Court made the following orders for the reasons it published as Anees v Minister for Immigration and Border Protection [2020] FCAFC 28:

1.    The Appellant have leave to file a Further Amended Notice of Appeal and to rely on an appeal ground particular not advanced before the primary judge.

 2.    The appeal is upheld.

3.    The orders of the primary judge made on 8 February 2019 save for the orders as to costs are set aside, and in lieu thereof the decision of the Second Respondent is quashed and the matter is remitted to the Second Respondent for determination according to law.

4.     In the absence of agreement between the parties on the question of the costs of the appeal and the order as to costs made by the primary judge, each party file and serve a short written submission (of 2 pages or less) on or before 10 days after the making of this order.

2    These reasons should be read in conjunction with that judgment.

3    Consistently with the opportunity provided to them, each party has filed written submissions in relation to the issue of costs.

4    The orders sought by the Appellant are as follows:

1.    The Appellant submits that the following orders are appropriate:

(a)    The Costs Order from the first instance decision of Allsop CJ in favour of the Respondents be set aside with no further order as to costs; and

(b)    Costs of the appeal be awarded to the Appellant.

2.    If the Court does not consider that the Appellant should be entitled to all of his costs, the Appellant submits that an appropriate alternative would be to order the costs of the appeal to the Appellant from 14 November 2019, with the costs of the parties prior to this date borne by each party separately.

5    Those sought by the Minister are that Order 3 of the orders made by this Court on 2 March 2020 should not be disturbed, and that:

a)    the Appellant should pay the costs of day 1 (14 November 2019) [occupied by argument on the ground of appeal upon which the Minister was ultimately successful, and consideration as to whether leave to add a new ground might be given]

 b)    otherwise, the Minister should pay the Appellant’s costs of the appeal.

6    In support of the orders for which the Appellant contends, he submits that the ordinary rule is that a successful party is entitled to its costs. If an appeal succeeds then the court will order the respondent to pay the costs of the appeal and of the proceeding at first instance unless there are special circumstances justifying some other order.

7    In that regard the Appellant’s counsel, Mr Burnside QC and Mr Watkins, submit:

5.    The original and amended grounds all shared a common basis with substantial overlap – one was focused on a single piece of character evidence, and the successful ground was concerned with the absence of consideration of the character evidence more generally in the assessment of risk of future offending. The costs should not be split among the grounds in circumstances where the underlying complaint - jurisdictional error for failure to consider relevant, significant and material evidence - was established.

6.    While the court may depart from the ordinary rule that costs follow the event where a new ground is raised on appeal, this is a discretionary matter that is not appropriate in this case:

(a)    Appellant’s conduct of the case: The new ground was not raised before the Federal Court as it had not been identified by the Appellant’s legal representatives at the time. The ground was not intentionally withheld; the decision to raise the additional ground was only made after questioning from the Court on 14 November 2019. It does not adversely affect the integrity of the appellate process. After the Court raised the additional ground with the parties, the Respondent did not concede it and the Appellant was required to raise argument in respect of it (that was ultimately persuasive).

(b)    Migration Matter: Awarding costs against the successful Appellant in any form is not in the interest of justice. An award of costs against the Appellant may deprive him of a benefit what would otherwise be a potential concomitant of his success on appeal, namely the grant of a visa (other than under s. 195A of the Act). This is because, the Appellant’s visa has been cancelled and a costs order would result in a debt to the Commonwealth. This in turn would mean that if the matter were to be remitted from the AAT to the Department he would need to meet PIC 4004 in circumstances that would very likely preclude him from being able to do so. He will remain in detention (he has already been detained for a lengthy period without the capacity to work and with no savings to pay the debt. As such would be unable to satisfy the debt. If he were to fail to meet this criterion, his application would be at considerable risk of refusal. This prejudice to the Appellant weighs against an award of costs in the Respondents’ favour.

(c)    Ambiguous Exhibits and New Facts: In relation to the unsuccessful grounds, it was not clear until after the hearing that the letter of Dr Salter dated 5 December 2016 (AB1163) was not annexed to the Report of Mr Warren Simmons. The lack of clarity regarding this document was caused by: the way in which documents were tendered at the AAT (the transcript did not assist in clarifying this matter) and the fact that neither the court book at first instance nor the appeal book contained a list of tendered exhibits (in circumstances in which the Respondents’ representatives prepared both books, the latter around May 2019). The issue was not resolved until after the hearing, as noted in the Joint Note on the provision of Dr Salter’s letter dated 15 January 2020.

(Footnotes omitted).

8    Conversely, in support of the order sought by the Minister that the orders of the court below not be disturbed Ms Whittemore submits:

3.    On 8 February 2019, the primary Judge (Chief Justice Allsop) made an order that the application for judicial review be dismissed with costs. The Full Court should not disturb the costs order made in the Minister’s favour by the primary judge on the basis that the appellant succeeded in the Full Court proceedings on a new ground which was not raised by the represented appellant in the proceedings before the primary Judge. The Full Court has taken this approach previously (see Uriaere v Minister for Home Affairs [2019] FCAFC 235 (Flick, Bromwich, Burley JJ), at [23] and Weti-Safwan v Minister for Home Affairs [2019] FCAFC 173 (Besanko, Perry and Stewart JJ), at [55]).

9    As to the costs of the appeal, Ms Whittemore submits:

6.    Because of the appellant’s amendment on the first day of the hearing, it was not possible for the Minister fairly to respond on that day. In effect, the appellant’s late application to amend on that day caused the adjournment. The appellant should pay the costs of that day (cf. Minister for Immigration and Border Protection v Aulakh [2018] FCAFC 91 at [85]), especially when he was ultimately unsuccessful on the ground of appeal that had up to that point advanced (cf. Parker v Minister for immigration and Border Protection [2017] FCAFC 115 at [24]).

7.    Put alternatively, but for the late application to amend, the matter clearly would have been heard on one day only. Accordingly, it can be seen that the consequence of the appellant’s late amendment is that the Minister unnecessarily bore costs of appearance at a second day that he would not otherwise have had to. The appellant should bear those costs.

Consideration

10    As a preliminary observation, we reject the proposition that the considerations raised on behalf of the Appellant at paragraph 6(b) of his submissions are open to be considered relevant to the exercise of this Court’s discretion to award or not award costs. If a party is otherwise properly liable to pay the other party’s costs, the contingent consequence that that party might have difficulty in meeting their payment and any actions that might be taken in consequence of their non-payment is immaterial to the prior exercise of the Court’s discretion to award, or not award, those costs.

11    The principles regarding the award of costs are well established. Ordinarily, a successful party is entitled to an award of costs in its favour in the absence of special circumstances justifying some other order: see Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 at [11] per Black CJ and French J; Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [67] per McHugh J, at [134] per Kirby J; Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 at [6]-[7] per Emmett, Kenny and Middleton JJ; and Federal Commissioner of Taxation v AusNet Transmission Group Pty Ltd (No 2) [2015] FCAFC 124 at [10] per Kenny, Edmonds and Greenwood JJ.

12    In respect of the costs of the appeal in this proceeding, the question is the familiar one often arising in cases of mixed success: being whether a successful party’s failure on one issue should affect the overall costs order.

13    The Court’s discretion is always open to be influenced by the conduct of the parties to a proceeding, having regard to their mixed success: see for example Comcare v Lilley [2013] FCAFC 121; 216 FCR 214 per Kerr, Farrell and Mortimer JJ at [113]-[115]. However, the disaggregation of costs is appropriate only in an exceptional case. Ordinarily the Court will not apportion costs where a party has been wholly successful in an appeal, notwithstanding that that success has been established by reason of the Court having granted him or her leave to rely on a ground not pressed in the court below.

14    That can be illustrated having regard to the outcome in each of the cases the Minister cites in his written submissions.

15    In Uriaere v Minister for Home Affairs [2019] FCAFC 235 (Uriaere) the Full Court held that the Minister should pay the costs of the appeal based on a ground for which leave had been granted, notwithstanding that the Appellant had abandoned his prior grounds of appeal.

16    Similarly in Weti-Safwan v Minister for Home Affairs [2019] FCAFC 173 (Weti-Safwan) the Full Court held that the successful appellant should have her costs of the appeal, notwithstanding her failure on other grounds for which leave had not been required.

17    In our view there is no sufficient reason in the present case as would suggest that the principle that costs follow the event should not apply in respect of the costs of the appeal. Mr Anees did not press a ground without arguable merit. The factor that the Full Court held to be dispositive was not finally clarified until the Court was supplied with the Joint Note of 15 January 2020.

18    Nor was the subject matter of the ground advanced pursuant to the leave which the Court granted the Appellant entirely disconnected from the issues which had been before the primary judge. Our leave permitted Mr Anees to rely on further particulars to a ground of appeal which alleged that the Administrative Appeals Tribunal had not had regard to a range of character evidence before it.

19    That proposition was agitated, albeit only in one specific and limited instance, before the primary judge. It is regrettable that neither party as represented below identified that the ground as then premised had advanced only a subset of one instance of the broader premise. However, that is not a reason to withhold costs from the ultimately successful party.

20    We therefore turn to the question of costs in the court below. In both Uriaere and Weti-Safwan, the Full Court left undisturbed the adverse costs orders in the courts below.

21    We would not want to be understood as endorsing the proposition that what was decided in those instances reflects a general principle that an existing adverse costs order must, save in exceptional circumstances, remain on foot if an appellant succeeds only because leave to advance new grounds has been granted.

22    Each case must be evaluated on its own merits. Well established principles provide that a party which succeeds in an appeal on a ground advanced in the court below will ordinarily also be awarded their costs in that court. Where an appeal court grants leave to argue a new ground the position is however different. It is likely to be rare that in those circumstances discretionary factors will justify an award of costs in an appellant’s favour being substituted for that made in the court below. However, in many instances the justice of the case may lead to an appeal court concluding in the exercise of its discretion that that there should be no order as to costs in respect of the proceedings at first instance.

23    No reason of principle requires that an appellant is ordinarily to be burdened with a costs liability in respect of a decision which he or she has ultimately succeeded in having overturned on appeal.

24    In the particular circumstances of this appeal we are however satisfied, albeit with some hesitation, that our discretion should be exercised by not disturbing the costs order made by the judge at first instance. To the extent that the factors to which we have had regard to at [17]-[19] above might also be thought to be relevant to our consideration of whether to set aside the primary judge’s costs order, they have been taken into account in our award of costs in the appeal. It would be double counting also to take into account those factors by varying the costs order made in the court below.

25    We are satisfied that in the proceedings before the primary judge, the Appellant made an explicit forensic decision to argue his case on a premise that we have found ultimately incapable of acceptance. There has been no reason advanced on Mr Anees’ part to explain why his legal representatives did not take steps prior to commencing those proceedings to clarify the ambiguity that his Counsel on appeal submitted attended the circumstances of the tender of Dr Salter’s letter. The order for costs made in the court below, notwithstanding the outcome of this appeal, was justified. We would not disturb it.

Associate:

Dated:    17 April 2020