Federal Court of Australia

Bilal v Australian Information Commissioner (Costs) [2026] FCA 1275

ORDERS

THE COURT ORDERS THAT:

1.    The respondent is to pay the applicant’s costs of the application.

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

REASONS FOR JUDGMENT

1    On 20 October 2025, the applicant, Mr Ali Bilal, commenced proceedings in this Court seeking judicial review of the Australian Information Commissioner’s (the respondent) decision to refuse to investigate the applicant’s privacy complaint against EML Group.

2    On 27 March 2026, I held a case management hearing in this matter. Mr Bilal appeared for himself, while Mr Julian Pinder of Mills Oakley appeared for the respondent. After that case management hearing, I made orders for the timetabling of this proceeding and the provision of evidence and submissions.

3    After considering the submissions filed by both parties, my view was that both parties had a substantial overlap in their competing proposals. On 19 May 2026, I directed my Associate to write to the parties to determine if there was any room for a potential agreement. On 22 May 2026, I made the below orders by consent.

1.    Pursuant to s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), the decision of the Respondent dated 29 September 2025 declining to investigate the Applicant’s complaint dated 24 March 2025 be quashed or set aside.

2.    Pursuant to s 16(1)(b) of the ADJR Act, the Applicant’s complaint dated 24 March 2025 be referred to the Respondent for determination according to law.

3.    Pursuant to s 16(1)(c) of the ADJR Act, the Court declares that the Applicant’s complaint dated 24 March 2025 was validly made under s 36 of the Privacy Act 1988 (Cth).

4    As the parties could not agree on an order as to costs, I made orders providing each party to provide submissions and evidence on that issue. Both parties agreed that the issue of costs could be determined on the papers.

5    The applicant submits at paragraph [11] of his submissions that as he was the successful party, the normal rule that costs should follow the event ought to apply. There appears from the respective parties’ submissions to be no dispute that the applicant was successful in his application, insofar as the orders referenced in [3] above were substantially those sought by the applicant in his originating application for judicial review.

6    The submissions of the Australian Information Commissioner argue that the costs the applicant may be entitled to are fairly narrow. The respondent proposes the Court make the following order as to costs at paragraph [2] of their submissions.

“The respondent is to pay the filing fee and/or setting down fee imposed by the Court upon presentation by the applicant of a receipt or receipts evidencing payment, but otherwise there be no order as to costs.”

(Italics in original.)

7    The respondent relies upon the High Court’s decision in Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 at [1], [15] and [33] (Kiefel CJ, Bell, Keane and Gordon JJ). At [33], a plurality of the High Court noted that:

In that regard, costs are a creature of statute It has never been thought that any of the ubiquitous statutory provisions empowering courts to order costs are available to compensate a litigant for his or her time and trouble in participating in litigation. That is because costs are awarded by way of indemnity; they are not awarded as compensation for lost earnings, much less as a reward for a litigant's success. The courts have long regarded the statutory power to make an order for costs as confined by the concern to provide the successful party with a measure of indemnity against the expense of professional legal costs actually incurred in the litigation…

(Footnotes omitted.)

8    The respondent also relied upon the similar observations made in Cachia v Hanes (1994) 179 CLR 403 at 410-411 and 413-414 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ).

9    From those authorities, the respondent distilled the following propositions:

(a)    The general rule is that a self-represented litigant is not entitled to compensation for time spent preparing for or participating in litigation.

(b)    Costs are intended as partial indemnity for professional legal costs by a legal practitioner or their employee.

(c)    Costs are not intended as comprehensive compensation for loss suffered by a litigant or as a reward for a litigant’s success.

(d)    Successful litigants, including self-represented ones, are entitled to recover disbursements for out-of-pocket amounts paid to others.

10    As I have noted above, the applicant represented himself throughout this matter and does not have a solicitor on the record. It followed, the respondent said, that the applicant was limited to costs in the category (d) identified above at [9].

11    With respect to both parties, their respective positions may not be in conflict.

12    In Bilal v Australian Information Commissioner [2026] FCA 376 – a proceeding involving the same parties and similar facts – Stewart J made an order that ‘[t]he respondent pay the applicant’s costs of the application’. His Honour said at [30] that:

The applicant seeks his costs of the application. Because he is a litigant in person and has not had a lawyer on the record, it is not clear what costs he may be able to claim other than the filing fee in respect of the originating application: Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 269 CLR 333 at [1]. Because of that, the Commissioner submits that the costs order should grant the applicant only that filing fee. I disagree. What the applicant is entitled to by way of costs, once he has a costs order in his favour, is a matter for taxation and is not to be enquired into or determined at this stage. The applicant should accordingly have his costs.

13    I see no reason to depart from that approach. Whether or not the applicant can demonstrate that he is incurred any expense or fees in the conduct of his litigation is a matter for taxation. If he cannot demonstrate those costs, then presumably the respondent will not be required to make any payment.

14    For those reasons, I will order that the respondent pay the applicant’s costs of the application.

Associate:

Dated:    3 September 2026