Federal Court of Australia

Williams v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1174

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay 90% of the respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    On 12 June 2020, the Court dismissed the applicant’s further amended originating application for judicial review of a decision made by the Assistant Minister for Immigration and Border Protection, pursuant to s 501CA(4) of the Migration Act 1958 (Cth), not to revoke an earlier decision to cancel the applicant’s visa on character grounds: Williams v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 814. At that time, the Court also made orders that the parties file and serve written submissions or an agreed note as to costs, and that the question of costs be determined on the papers.

2    For the following reasons, I have decided that the applicant should pay 90% of the Minister’s costs on the usual party and party basis, as agreed or taxed.

Relevant background

3    The relevant background to this proceeding is set out in the reasons for the primary judgment published on 12 June 2020, and these reasons assume familiarity with those reasons.

4    In the primary reasons, I stated that the starting point on the question of costs was that since the Minister had been successful, he would ordinarily be entitled to an order for costs, but that I had formed the tentative view that his costs should be reduced on account of his solicitors’ errors in the preparation of the court book, which caused confusion and additional work that the parties’ legal representatives reasonably undertook as a result. I stated that the additional work likely included additional affidavits, submissions, and possibly the adjournment of the hearing on 8 March 2019, in respect of which costs were reserved.

5    On 3 July 2020, the Minister filed written submissions seeking that the Court make the usual order that the Minister be awarded his costs, without any reduction. The Minister submitted that while his solicitors had made errors in the preparation of the court book filed on 3 July 2017, it should not follow that his entitlement to costs be reduced as a result. The Minister submitted that the only relevant error in the court book was the inclusion of the assault charge police brief in a way that conveyed the incorrect impression that it was attached to the letter from the Department to the applicant’s representative dated 19 September 2016. The Minister observed that on 26 June 2018, the applicant filed submissions that referred to an affidavit of his then representative, Ms Janelle Kenny, filed that same day, in which she gave evidence that the assault charge police brief was not attached to the Department’s letter. The Minister further observed that following that, the issue was not raised again until the commencement of the hearing on 8 March 2019, when the applicant’s counsel sought an adjournment on the basis that it was necessary for the Minister to file evidence in relation to whether the assault charge police brief was attached to the Department’s letter, despite the Minister’s counsel inviting the Court to infer that it was not. The Minister submitted that if the applicant had squarely raised that issue on 26 June 2018 when he filed his submissions that referred to the affidavit of Ms Kenny filed that same day, or at any time sufficiently before the hearing on 8 March 2019, then the Minister could have readily resolved the issue by evidence without the need to adjourn the hearing. Finally, the Minister made an alternative submission that the Court make the usual order that the Minister be awarded his costs, less the costs of preparing the affidavits of Mr Adam Cunynghame and Ms Carmen Muscat filed on 29 March 2019, which explained the error in the court book and confirmed that the assault charge police brief was not attached to the Department’s letter.

6    The applicant is in immigration detention and he is now self-represented, although he was represented by solicitors and counsel during the hearings of this proceeding. The applicant has not filed written submissions as to costs. The Court made successive orders extending the time for the applicant to do so from 22 June 2020, to 3 July 2020, and finally to 30 July 2020. On 4 August 2020, the applicant sent an email to my Chambers in which he referred to an appeal that he has lodged from the primary judgment, and stated that “costs were included in the appeal lodged with the court”. The applicant’s appeal is not relevant to the question of costs in this proceeding.

Consideration

7    The Court has a broad discretion to award costs: Federal Court of Australia Act 1976 (Cth), s 43. That discretion must be exercised judicially, with appropriate regard to guiding principles, including the central principle that a successful party should be compensated for expenses that it has incurred because it has been obliged to litigate by the unsuccessful party: Northern Territory v Sangare [2019] HCA 25; 265 CLR 164 at [25] (the Court). However, the application of that principle may be modified where the successful party’s conduct in relation to the litigation justifies a different outcome: Northern Territory v Sangare at [25].

8    I shall take a broad-brush approach to determining the extent to which the Minister’s entitlement to his costs should be reduced to account for his conduct in relation to the litigation. Such an approach is appropriate in the circumstances, which include my familiarity with the proceeding.

9    I have determined that the Minister’s entitlement to costs should be reduced by 10%. The reason for that reduction is that the Minister’s solicitors made errors in the preparation of the court book, which caused confusion and caused the parties’ legal representatives reasonably to undertake additional work. I accept the Minister’s submission that if the applicant had squarely taken issue with the court book, and raised the need for the Minister to file evidence in relation to whether the assault charge police brief was attached to the Department’s letter sufficiently before the hearing on 8 March 2019, then the Minister might have resolved the issue by evidence without the need to adjourn the hearing. Nonetheless, it is not disputed that the relevant error in the court book caused confusion, nor that it also caused the Minister to prepare additional evidence, namely the affidavits of Mr Cunynghame and Ms Muscat filed on 29 March 2019. Further, it is apparent that it also contributed to the cost of preparing the earlier affidavit of Ms Kenny filed by the applicant on 26 June 2018. The issue of the applicant’s delay in failing squarely to raise the issue before the commencement of the hearing on 8 March 2019 is of limited relevance to the costs of preparing the additional affidavits. The Minister would have incurred additional costs in preparing additional evidence whether that work occurred before the hearing on 8 March 2019, or, as occurred, after an adjournment of that hearing. The applicant should not be required to indemnify the Minister for costs incurred as a result of the errors in the preparation of the court book, and I consider that a modest 10% reduction in the Minister’s entitlement to costs is an appropriate adjustment in the circumstances.

10    Therefore, the applicant should pay 90% of the Minister’s costs on the usual party and party basis, as agreed or taxed, and an order to that effect shall be made.

Associate:    

Dated:    18 August 2020