Federal Court of Australia

Gibson v Minister for Home Affairs [2022] FCAFC 94

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s oral statement to the Court this day that he did not wish further to prosecute the appeal, subject to this order, stand as a notice of discontinuance of appeal, in form 126, filed and served.

2.    Notwithstanding the terms r 36.73(4) of the Federal Court Rules 2011 (Cth), the appellant pay the respondent’s costs of and incidental to the appeal on and from 18 February 2022, to be fixed by a Registrar, if not agreed.

3.    For the avoidance of doubt, there be no variation in respect of the order for costs made by the Federal Circuit Court of Australia on 5 October 2020 in MLG1926 of 2020.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Mr Michael Donald Gibson (Mr Gibson) is a citizen of New Zealand. In 2018, pursuant to the power conferred by s 501(3A) of the Migration Act 1958 (Cth) (the Act), Mr Gibson’s visa, which had hitherto permitted him lawfully to reside in Australia, was cancelled. The reason for that cancellation was that a delegate of the Minister for Home Affairs (Minister) was satisfied that Mr Gibson did not pass the character test for which s 501 of the Act provides. In essence, that satisfaction was grounded upon Mr Gibson’s conviction and consequential sentencing in September 2017 in respect of an offence of reckless wounding.

2    By a letter dated 10 July 2018, the Minister notified Mr Gibson that his visa had been cancelled and invited him to make representations in respect of the revocation of the cancellation of his visa. That letter was received by Mr Gibson on 18 July 2018. There was a specified time limit, which was said to accord with the Act, in respect of the making of a representation about revocation of cancellation to the Minister. It was not until 23 September 2018 that Mr Gibson made a representation as to why the cancellation of his visa should be revoked (September 2018 representation). It was administratively determined that the time limit specified in s 501CA of the Act had expired prior to the making of that representation by Mr Gibson with the consequence that there was no obligation on the part of the Minister to consider the exercise of a discretion to revoke cancellation.

3    Thereafter, initially, in the High Court of Australia and subsequently on remitter in the then Federal Circuit Court of Australia (Federal Circuit Court), Mr Gibson sought an order in the nature of a mandamus requiring the Minister to consider his September 2018 representation. That particular judicial review proceeding failed in the Federal Circuit Court: see Gibson v Minister for Home Affairs [2020] FCCA 2731; (2020) 358 FLR 15.

4    A more detailed procedural history in respect of Mr Gibson’s endeavour to secure consideration of his September 2018 representation by the Minister, as well as anterior administrative steps, is set out in the reasons for judgment of his Honour Judge Kelly. It is not necessary for present purposes to descend into that detail. Suffice it to say, after the Federal Circuit Court made its order on 5 October 2020 dismissing with costs the judicial review application, Mr Gibson instituted an appeal in this Court against the Federal Circuit Court’s orders. That particular appeal was identified as one of those which may be affected by the other then-pending appeals in the Full Court, in particular, BDS20 v the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister for Immigration), EPL20 v the Minister for Immigration and Sillars v the Minister for Immigration.

5    Late in 2021, the Full Court delivered judgment in two of those appeals: EPL20 v the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174. Not, I rather think, by coincidence, having regard to the outcomes in those Full Court cases and the particular construction of s 501CA of the Act preferred in relation to the making of a valid invitation by the Minister, the Minister came, in Mr Gibson’s case, on 18 February 2022, to reissue a notification of the cancellation of his visa and to extend an invitation to make representations about the revocation of that cancellation. Mr Gibson, thereafter, made a representation afresh. It is common ground, as between Mr Gibson and the Minister, that the Minister is lawfully obliged to consider that consequential 2022 representation.

6    Mr Gibson confirmed today what is, with respect, a most practical assessment of the effect of that further invitation, his consequential representation and the acceptance that the Minister is obliged to consider that particular representation. That practical assessment is that the appeal has no practical utility, on and from the invitation having been extended afresh and acted upon. In light of that, Mr Gibson signified to us, orally, that he did not wish further to prosecute the appeal.

7    In the ordinary course of events, such a disposition would have resonated, as r 36.73 of the Federal Court Rules 2011 (Cth) contemplates, in the filing of a notice of discontinuance of the appeal in accordance with form 126. Mr Gibson is hardly to be criticised, now that he has come to act for himself, in not filing such a notice of discontinuance. It is open to us to deem his oral statement, made this day, that he does not wish further to prosecute the appeal, to stand as if it were a notice of discontinuance.

8    That would have the consequence that the effect is the same as if the court made an order dismissing Mr Gibson’s appeal: see r 36.73(2). That rule also provides, by r 36.73(4), that an appellant who files such a notice of discontinuance must, unless the other parties agree, pay the costs of each respondent. The Minister sought, in effect, as his primary position, the making of just such an order.

9    Anticipating such a disposition on Mr Gibson’s part and the Minister’s costs position, it did not appear to be just that there should be such a costs order without hearing from the parties. Accordingly, provision was made, at the case management stage, for the filing of an outline of submissions by the Minister and for the hearing of oral submissions by both the Minister and Mr Gibson today.

10    The upshot of that is that Mr Gibson’s submission is that the Minister’s concession as to an invalidity in respect of the earlier 2018 invitation should resonate not just in there being no order as to costs, including the associated costs in the High Court, in respect of the appeal, but more particularly, that the costs order in the Federal Circuit Court should be set aside such that there is either a costs order made in his favour or, at least, no order as to costs.

11    The Minister’s primary position in relation to the appeal I have already mentioned. The Minister’s alternative position is that, at least in respect of the appeal, she should have the costs on and from 18 February 2022. That is because, on and from that time, Mr Gibson’s purpose had been achieved and there was no practical purpose to the appeal. The Minister’s position in relation to the Federal Circuit Court costs order is that it should not be disturbed.

12    The Court’s power to award costs is found in s 43 of the Act. That power, in relation to a proceeding such as the present, is a general discretion, not subject to any particular statutory intrusive prescription, but it is a power that must be exercised judicially.

13    As to that, in Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622, at 624 – 625, McHugh J observed:

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extracurial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans.

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare.

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.

[references omitted]

14    Those same sentiments, in my view, have resonance in relation to the discontinuance of an appeal. But it does not always follow that there must be no order as to costs. A discretion falls to be exercised in the circumstances of each particular case.

15    At the most general level of abstraction, Mr Gibson has always sought nothing more and nothing less than a consideration by the Minister, of a representation by him that the cancellation of his visa should be revoked. But to put matters at that general level of abstraction is to obscure that the power to revoke cancellation found in s 501CA of the Act is not at large. It is conferred subject to particular conditions precedent. As instituted initially in the High Court, and prosecuted in the Federal Circuit Court, a challenge which sought to compel the exercise of the revocation power was wholly directed to grounds which sought to require that, notwithstanding the lateness of Mr Gibson’s September 2018 representation, the Minister was nonetheless obliged to consider that representation.

16    None of the grounds upon which that order was sought succeeded in the Federal Circuit Court. Mr Gibson’s challenge to those orders preserved a position for him, in relation to whether the Minister was, indeed, obliged to consider the September 2018 representation. It was not, with respect, unreasonable on his part to have sought to preserve that decision by the institution of an appeal. I see no unreasonable conduct in that regard. Nor do I see any unreasonable conduct on Mr Gibson’s part up to and including 18 February 2022. At that time, a further invitation was made, which he acted upon. But that further representation is distinct from the earlier September 2018 representation.

17    Mr Gibson put to us that costs below should be disturbed because, in effect, the Minister had conceded that he was at fault in making the earlier invitation. But that fault reflects the wisdom of jurisprudential hindsight, so far as the issues which were at large in the Federal Circuit Court are concerned. Any consequential invalidity in Mr Gibson’s September 2018 representation may have, additionally, been supported by the existence of an invalid invitation. It is not necessary for us, especially in the context of costs adjudication, to reach any concluded view about that, only to appreciate that the Minister’s February 2022 invitation had nothing to do with why it was that, notwithstanding lateness, she was obliged to consider the September 2018 invitation.

18    All of the foregoing is a long way of putting that the conduct in 2018 was not, as Mr Gibson would see it, wholly that of the Minister, in terms of forensic consequence. The lateness of the September 2018 representation also had forensic consequence. The actual order made by the Federal Circuit Court was to refuse a mandamus. Nothing in the issuing of the further invitation calls into question – or could reasonably, in my view, be seen to call into question whether a mandamus would otherwise have gone. At most, it may provide an additional reason why mandamus would have been refused.

19    So the view I have is that there should be no disturbing of the costs order made by the Federal Circuit Court. As to the costs of the appeal, I have already indicated my view that Mr Gibson’s conduct in the institution and prosecution of that appeal, up until 18 February 2022, was perfectly reasonable. I am not, therefore, disposed to take up the Minister’s primary costs position, which is that Mr Gibson should pay all of the Minister’s costs of the appeal.

20    I note that Mr Gibson was, at the time of the Minister’s making of the February 2022 representation, legally represented. It was not until April 2022 that Mr Gibson’s lawyers withdrew. It would be quite inappropriate to speculate at all about the reasons for that withdrawal, only to recognise that there was a period between 18 February 2022 and that withdrawal when Mr Gibson had the benefit of legal representation. Over that period, costs were incurred in the preparation of written submissions. All, in my view, to no practical end.

21    For these reasons, the costs order I would make in relation to the appeal is that Mr Gibson pay the Minister’s costs on and from 18 February 2022, to be fixed by a Registrar if not agreed.

22    For completeness, I should add that at the case management hearing and upon Mr Gibson’s signification that he wished the Minister additionally before making the decision, to take into account his September 2018 representation. The Minister accepted that she was obliged thereupon additionally to consider that representation. But that outcome was in no way dependent upon the further prosecution of the appeal. It could have been achieved much earlier merely by the making of a request in that regard by or on behalf of Mr Gibson to the Minister. So I see no reason in the Minister’s recognition now of an obligation to consider the September 2018 representation to disturb the costs order made below or, for that matter, to make any different costs order in respect of the appeal to that which I have foreshadowed.

23    I would, therefore, make orders in the terms indicated.

Associate:    

Dated:    25 May 2022

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

SC DERRINGTON J:

24    I agree with the reasons of Justice Logan and with the orders proposed.

Associate:    

Dated:    25 May 2022

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MCEVOY J:

25    I agree with the reasons of Justice Logan and with the orders proposed.

Associate:    

Dated:    25 May 2022