FEDERAL COURT OF AUSTRALIA

BJH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2019] FCA 1964

ORDERS

THE COURT ORDERS THAT:

1.    The third and fourth appellants’ further amended interlocutory application be dismissed.

2.    The first appellant pay the first respondent’s costs, of and incidental to the further amended interlocutory application, to be taxed if not agreed.

3.    The first respondent’s name be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

4.    The first respondent’s application for summary judgment be dismissed.

5.    There be no order as to costs in relation to the first respondent’s application for summary judgment.

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    On 18 May 2018, I dismissed with costs an appeal against the orders made by the Federal Circuit Court of Australia (Federal Circuit Court) in BJH17 and Ors v Minister for Immigration and Anor [2017] FCCA 2932: see BJH17 v Minister for Immigration and Border Protection [2018] FCA 891. A subsequent application, at least purportedly by each of the appellants, for special leave to appeal to the High Court of Australia was subsequently dismissed by that court on 12 September 2018: BJH17 & Ors v Minister for Immigration and Border Protection & Anor [2018] HCASL 281.

2    By a further amended interlocutory application filed on 11 November 2019, the third and fourth appellants seek orders that the Court’s order of 18 May 2018 be set aside. In its filed form, the further amended application makes reference to the fifth and six appellants, but as it transpired on the hearing of submissions today, that ought to be a reference to the third and fourth appellants. They also seek the appointment of the first appellant, their father, as their litigation representative. The reason for that lies in the infancy, at the time the notice of appeal was filed on 12 December 2017, of the third and fourth appellants, in other words, BKW17 and BKX17. It is common ground that the third appellant was born in 2005 and that the fourth appellant was born in 2010.

3    Apparently enough, it was thought that there was some forensic advantage for the third and fourth appellants flowing from the fact that, as a search of the Court’s record reveals, no appointment was ever made in this Court of a litigation representative for either of those appellants. Thus, it was considered, seemingly by those advising them, that the result on the appeal did not bind them. The further amended interlocutory application nonetheless seeks leave to raise in the appeal grounds which were not pleaded in the notice of appeal. It might be thought that there is an inherent tension between seeking to have the advantage of not being bound, because of the absence of a litigation representative and seeking in the appeal to agitate new issues, and to do so after the making of what is otherwise a final judgment.

4    As it happens, it is not necessary to delve into the niceties this may entail, both in terms of practice and procedure, and in terms of substantive law. That is because, in the course of the hearing of the application today, and as a result of a search which I caused to be conducted of the Federal Circuit Court file, it was revealed that, on 20 July 2017, a registrar of that court had appointed the first applicant – who is the father of the third and fourth applicants in that court and who are respectively the first, third and fourth named appellants in this Court – as the litigation guardian of the third and fourth applicants for the purposes of the proceeding in the Federal Circuit Court. The effect of that representation order in that court was that, on any view, the third and fourth applicants were bound by the order of dismissal made by that court on 28 November 2017.

5    If, as prima facie would seem to be the case – although it is unnecessary finally to decide the point – the absence of a litigation representative order in this Court meant that, in relation to the third and fourth appellants, their appeal was incompetent, all that means is that there is a subsisting order of dismissal made long ago in respect of the judicial review application which they, amongst others, instituted. Upon this being drawn to the attention of counsel who appeared today for the third and fourth appellants, I was asked to, and did, stand the case down in order to allow time for the taking of instructions by counsel and his instructing solicitor. Upon the resumption of Court after the adjournment, I was informed by counsel for the third and fourth appellants that the application would not be pressed.

6    That result made it unnecessary to consider a summary judgment application which the Minister had filed prior to the filing of the third and further appellants’ application in its further amended form.

7    The Minister sought costs, not only in respect of the further amended application, but also in respect of the summary judgment application. I put to counsel for the third and fourth appellants that even to regularise their application would require the appointment of a litigation representative, at least for the purposes of that application. Indeed, that application had envisaged as much. The alternative course I put was to treat the third and fourth appellants’ father, the first appellant, as the person standing behind the litigation in any event, such that, as a third party, he ought to be made amendable to a costs order.

8    Counsel for the Minister, with respect helpfully, highlighted that there was a need for procedural fairness reasons to allow the first appellant an opportunity to be heard in relation to whether a costs order should be made against him. I therefore again stood the matter down for the purpose of allowing counsel for the third and fourth appellants to seek and secure instructions from the first appellant on that subject. Upon resuming, I was informed that, those instructions having been taken, the first appellant did not wish to be heard in opposition to the making of a costs order in respect of the further amended interlocutory application.

9    I have no doubt at all that costs must follow the event, given that I am going to dismiss the further amended interlocutory application. There is, though, an outstanding question about whether an order for costs ought, additionally, to be made in relation to the Minister’s summary judgment application. In my view, everything that might have been said on the summary judgment application could and should have been said in respect of why it was that the further amended interlocutory application, or any earlier iteration thereof, was amenable to dismissal. In other words, I am firmly of the view that the summary judgment application was unnecessary.

10    It follows from that that I am not disposed to make an order in favour of the Minister in relation to the summary judgment application, but the Minister is most emphatically entitled to a costs order in respect of the dismissal of the further amended interlocutory application.

Associate:    

Dated:    25 November 2019

SCHEDULE OF PARTIES