Federal Court of Australia

ANW18 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FCA 916

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s interlocutory application dated 13 June 2025 is dismissed.

2.    The appellant is to pay the first respondent’s costs of and incidental to the interlocutory application, fixed in the amount of $1,000.00.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    On 19 July 2025 I made an order dismissing an interlocutory application filed by the appellant. Oral reasons were given on that day. These written reasons are revised from the transcript. As foreshadowed to the parties, the written reasons include additional references to factual background, legal principle and some elaboration not inconsistent with the ex tempore reasons.

REASONS REVISED FROM THE TRANSCRIPT

2    By his originating application, the appellant appealed from an order of the then-named Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the former Immigration Assessment Authority. The Minister for Immigration and Multicultural Affairs was named as the first respondent.

3    On 4 September 2024 I made an order dismissing the appeal. Reasons were published as ANW18 v Minister for Immigration and Multicultural Affairs [2024] FCA 1008. I made a further order that the appellant was to pay the Minister’s costs of and incidental to the appeal.

4    Rule 40.12 of the Federal Court Rules 2011 (Cth) provides that if an order is made in favour of a party for payment of the party’s costs, the costs must be taxed in accordance with Pt 40, unless the amount of costs is agreed between the parties to the order. Rule 40.14 provides that if the Rules or an order of the Court entitle a party to costs the party may have those costs taxed without an order directing taxation. Accordingly, the effect of the order of 4 September 2024 was to confer upon the Minister an entitlement to have the costs taxed in the absence of an agreement as to quantum.

5    Before the Court is an interlocutory application filed by the appellant on 13 June 2025 by which he seeks an order that the Minister is entitled to his costs of the proceeding fixed in a lump sum of $5,000.00.

6    For the reasons discussed below, the appellant should not be granted relief and the process of taxation already commenced under Pt 40 of the Rules should run its course, in the absence of an agreement.

Background and legal context

7    Rule 40.17 provides that a party who wants to have costs taxed must file a bill for taxation. In accordance with r 40.18 the bill must contain certain particulars, including particulars of work done by lawyers, the costs claimed for the work and disbursements incurred. Documents must be attached, including copies of receipts for each disbursement and copies of relevant accounts.

8    Following the order of 4 September 2024, the parties (by their lawyers) engaged in correspondence relating to the quantification of the Minister’s costs, commencing with the service on the appellant of a bill of costs (prepared in accordance with r 40.18) on 5 November 2024. The bill itemised costs in the amount of $58,112.08.

9    By email sent on 8 November 2024 the appellant proposed that there be a lump sum costs order in the amount of $5,000.00. The Minister rejected that proposal on the same day.

10    On 13 November 2024, the appellant restated the proposal that the parties agree a lump sum costs order in the amount of $5,000.00 and provided some reasons in support of his proposal. On 21 November 2024, there was a further email from the Minister rejecting the proposal and stating that the appellant could lodge an objection to any assessment of the costs in due course.

11    Rule 40.20 provides that, before a bill is taxed, the Taxing Officer is to make an estimate of the approximate total for which, if the bill were taxed, the certificate of taxation would likely issue. An estimate under r 40.20 is made in the absence of the parties and without making any determination of individual items in the bill. The Taxing Officer is to give written notice of the estimate to each party interested in the bill.

12    On 17 June 2025, a Registrar of the Court (in her capacity as Taxing Officer) undertook an estimate of the Minister’s costs and notified the parties of her view that a certificate of taxation would likely issue in the amount of $38,600.00.

13    Rule 40.21 provides that a party interested in the bill who wants to object to the estimate must, within 21 days after the issue of the notice of estimate, (a) file a notice of objection in accordance with Form 128, and (b) pay into the Litigants’ Fund an amount of $2,000.00 as security for the costs of any taxation of the bill. Upon the receipt of a notice of objection, a Registrar directs parties to attend for a conference to identify the real issues in dispute and to reach a resolution or a provisional taxation. The Registrar may otherwise direct a provisional taxation or that the taxation of the bill proceed.

Rule 40.02

14    The present interlocutory application is said to have been brought under r 40.02(b) of the Rules. Rule 40.02 provides:

A party or a person who is entitled to costs may apply to the Court for an order that costs:

(a)    awarded in their favour be paid other than as between party and party; or

(b)    be awarded in a lump sum, instead of, or in addition to, any taxed costs; or

(c)    be determined otherwise than by taxation.

Note 1:    The Court may order that costs be paid on an indemnity basis.

Note 2:    The Court may order that the costs be determined by reference to a cost assessment scheme operating under the law of a State or Territory.

15    An issue arises as to whether the appellant has standing to apply under that rule.

16    Counsel for the Minister submits that the rule confers standing upon (and only upon) a person (whether or not a party) who is entitled to costs. The appellant’s position is that an application may be made by a party (whether or not entitled to costs) or a person who is entitled to costs.

17    It is unnecessary to express a view about the proper construction of the rule. The question can be deferred for a case that necessarily turns upon it.

18    In the present case, if the appellant does not have standing to apply under r 40.02(b) I have no doubt that he may invoke the Court’s power under r 39.05(c) to vary or set aside an interlocutory judgment or order after it has been entered. The same considerations would arise and the same outcome would be reached irrespective of the rule under which the interlocutory application is made.

19    In either instance the appellant seeks to deprive the Minister of a present entitlement to have his costs quantified under Pt 40 of the Rules.

Consideration

20    If the interlocutory application is not granted, the next step is for the appellant to object to the estimate in accordance with r 40.21, which includes a requirement that he pay $2,000.00 as security for the costs of the taxation.

21    The affidavit supporting the interlocutory application asserts that the application is made for reasons including the appellant’s inability to afford the security amount. However, at the hearing of the application, impecuniosity was not relied upon as a primary reason for the claimed relief. To the extent that impecuniosity was relied upon at all I do not consider that asserted fact to justify the relief sought, given the other facts and circumstances discussed below. In addition, there is no evidence that the appellant has applied to have the security requirement waived. If he wishes to have it waived, I consider it appropriate that he furnish more particular evidence of his financial position in addition to the bare assertion of his solicitor (based on instructions) that he cannot afford to pay.

22    It is open to a person in the appellant’s position to make an application to revisit the framing of a costs order already made and entered. Whatever be the appropriate rule, the power sought to be invoked forms a part of the Court’s practice and procedure provisions. Section 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act), requires that I interpret and apply the practice and procedure provisions in a way that best promotes their overarching purpose.

23    Ordinarily, a lump sum costs assessment is a procedure by which some of those purposes may be advanced. As Rares J said in Keen v Telstra Corporation Limited (No 2) [2006] FCA 930:

4    The purpose of a fixed costs order under O 62 r 4(2)(c) is to save the parties the time, trouble, delay, expense and aggravation in having a taxation proceed on a matter. The court deals as a commonplace with administrative appeals of this nature. …

5    In Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120F-G von Doussa J said of O 62 r 4(2)(c) that:

‘The purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation. The power is appropriate to be used in complex cases.’

6    In my opinion it is also appropriate to be used in cases which are simple and in which there would be utility in the court cutting the Gordian knot of protracted fights about costs which is the hallmark of this particular piece of litigation. It is a commonplace for the court to fix in administrative appeals under the Migration Act 1958 (Cth) an amount of costs for a successful party.

24    See also Masters v Lombe [2024] FCA 1336, Cheesman J (at [26] – [28]).

25    Before making a lump sum costs order the Court should have “sufficient confidence” that it can reach an appropriate sum on the materials before it: Colquhoun v District Court of New South Wales (No 2) [2015] NSWCA 54, Beazley P, Barrett and Leeming JJA (at [6] – [7]). It is incumbent upon the party seeking the lump sum costs order to provide a proper evidentiary basis, so as to permit a broad brush assessment of the costs likely to be awarded if the matter were to proceed to a taxation: TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] FCA 955, Markovic J (at [21]); Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11, Barrett J (at [56]); South Western Sydney Local Health District v Gould (No 2) [2018] NSWCA 160, Basten JA (at [10] – [12]).

26    I respectfully agree with the observation that it is commonplace for this Court to fix an amount for the costs of a successful party in appeals relating to migration decisions. However, I would add that an explanation for that may be the convenient procedure established under r 40.43 and r 40.44. Under those rules a short form bill of costs may be filed, asserting an entitlement to be paid an amount prescribed in the scale contained in Sch 3 to the Rules. Subject to the fulfilment of some conditions, the Rules confer an entitlement to costs in the scheduled amounts so avoiding some of the complexities of a taxation that might otherwise arise. However, a party in whose favour costs are ordered need not invoke the short form procedure and may proceed to taxation by filing a bill in accordance with r 40.17. That is what the Minister elected to do in the present case.

27    The appellant’s principal argument is that the costs of an appeal of the kind brought in this proceeding are ordinarily ordered in amounts considerably less than the amount stated in the Minister’s bill, and the amount estimated by the Taxing Officer. The Court was invited to conclude that the costs were excessive by reference to that comparison. In addition, the appellant took issue with the reasonableness of particular items, including the costs associated with the Minister’s choice to brief both senior and junior counsel. It was submitted that the appeal was not sufficiently complex to justify briefing two counsel, that the hearing was not long and that there was unreasonable duplication in solicitor’s fees arising from the Minister’s choice. The appellant relied upon the following cases and the lump sum costs amounts awarded in each of them: AEN20 v Minister for Immigration and Multicultural Affairs [2024] FCA 979, Downes J; AZJ20 v Minister for Immigration and Multicultural Affairs [2024] FCA 978, Downes J; GAW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 867, Jackson J; DDC24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 646, Wheelahan J; EMX18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 548, Jackson J.

28    I do not find the appellant’s submissions relating to the appropriate quantum of costs at all persuasive for five reasons.

29    First, the cases in which lump sum costs orders have been made must be understood in light of the facts and circumstances of each case. It may well be that the amounts were ordered upon the application of the Minister as a matter of pragmatism and with the consent of an unsuccessful party who could achieve no better outcome in light of the scale in Sch 3 to the Rules. The amounts ordered indicate that was so.

30    Secondly, the cases referred to are otherwise of little utility in determining an appropriate lump sum in the present case. There is no indication that the sums were the subject of judicial consideration, nor is it clear that the disputed issues in those cases were of a similar nature or complexity to those that arose on this appeal.

31    Thirdly, the appellant has chosen to use the procedure of an interlocutory application in which he seeks an order that costs be fixed in the amount of $5,000.00. Whilst the appellant took issue with the reasonableness of some amounts claimed by the Minister, those submissions alone cannot support a conclusion that the appropriate amount is $5,000.00. To the extent that the appellant genuinely contended that costs should be fixed in that amount, it does not suffice to point to some aspects of the bill of costs with which he takes issue without identifying the mathematical consequence that should follow from acceptance of those complaints. It is not at all apparent that disallowing costs referable to the Minister’s choice to engage two counsel (or other items complained of) would result in a conclusion that $5,000.00 is a reasonable sum.

32    Fourthly, and relatedly, I do not accept that this appeal was a straightforward matter. The Minister assumed responsibility for preparing the appeal books. The hearing was complicated by the raising of issues that had not been raised at first instance. There was a need to refer at some length to transcripts of an earlier hearing and the Minister prepared three sets of submissions. The matter was neither overly straightforward nor overly complex. Having regard to the disputed issues, it is not at all obvious that the Taxing Officer’s estimation is disproportionate, nor that the Taxing Officer failed to have regard to matters of the kind now raised by the appellant.

33    Fifthly, the appellant made alternative submissions to the effect that the Minister’s costs should be fixed in the amount of $20,000.00. Given the considerations that follow, I decline to embark on an exercise to determine an amount other than that specified on the interlocutory application. The overarching purpose of the practice and procedure provisions are best served by discouraging litigants from making applications relating to costs that have the appearance of an ambit claim, and then reverting orally to a more sensible position in the course of the hearing.

34    Even if there were some indications that the Minister’s claimed costs (or the Taxing Officer’s estimate) were not reasonable, I would dismiss the interlocutory application in any event.

35    When the costs order was made in September 2024 the appellant was legally represented. There was no objection to the order in the terms that it was then made. The effect of the order was to enliven the Rules potentially culminating in a taxation without the need for Minister to make any further application for those processes to run their course. The Minister then went to the inconvenience and expense of preparing a bill of costs compliant with r 40.18 of the Rules.

36    The correspondence passing between the parties indicates that the positions that they held in November 2024 were so disparate that it ought to have been apparent to the appellant that there was little prospect of the parties reaching agreement as to quantum. The inevitable course was for there to be an estimate conducted in accordance with the Rules. That in fact occurred. The administrative resources of the Court were diverted to that exercise and an estimate of $38,600.00 has been produced.

37    Counsel for the appellant acknowledged that there had been a delay in bringing this application. No explanation was given for that delay. The delay and lack of explanation weigh heavily in the Court’s discretion, given that it was open to the appellant to seek an order that costs be fixed in a lump sum on the day that the costs order was made, and then open to the appellant to apply to vary the costs order once it was apparent that no agreement as to quantum could be reached.

38    In the circumstances described, the procedure adopted in the present case is not in accordance with a party’s obligation under s 37N of the FCA Act. The Court’s resources have been deployed in processes preliminary to a taxation. In the ordinary course, the appellant would be required to pay a security sum to object to the estimate that has been prepared. By bringing the present application at the present time, the appellant has circumvented the usual requirement to pay the security, so exposing the Minister to yet further costs that may not be recoverable. In my view it was incumbent upon the appellant in the present case to explain why he did not seek to vary the original costs order until after he was notified of the Taxing Officer’s estimate.

39    I do not consider it to be an appropriate use of the Court’s judicial resources to revisit questions of costs some nine months after the costs order was made. In effect, the Court has been invited to undertake an estimate-like process, that is, to evaluate what the likely result might be on a taxation, adopting a broad brush approach. That is precisely what an experienced Taxing Officer has already done. For a judge to now undertake that exercise afresh would be contrary to the overarching purpose of the practice and procedure provisions.

40    The Rules establish an objection process by which matters of the kind raised by the appellant can be raised before a Taxing Officer. If there be duplication arising from the choice to engage two counsel or unreasonableness in that choice per se, that is a matter for the Taxing Officer to determine.

41    I have not overlooked the requirements of the Court’s practice note relating to costs, nor the amounts set out in Sch 3 to the Rules, applicable on a short form bill of costs process in migration matters. All of those would be relevant on an assessment if no agreement can be reached.

42    It remains open at any time for the parties to agree to an alternate amount to that set out in the estimate.

Associate:

Dated:    29 July 2025