CHF16 v Minister for Immigration and Border Protection (No 2) [2017] FCAFC 215

CHF16 v Minister for Immigration and Border Protection (No 2) [2017] FCAFC 215

The appeal succeeded on a basis sufficiently related to Ground 1 as argued before and rejected by the primary judge, so the first respondent should pay the applicants' costs at first instance. On the appeal, there was at least a possible conflict of interest between the appellant father and appellant son because, if it had been necessary to consider each appellant's separate potential exceptional circumstances and prior knowledge, the conflict would have been real. Accordingly, each appellant was entitled to costs of the appeal, including work related to the argument about separate representation, and those costs were payable directly to pro bono counsel under r 4.19(3).

Jurisdiction
Australia
Judgment Date
14 December 2017
Procedural Posture
Costs Determination Following Successful Migration Appeal / Decided on the Papers After the Full Court Allowed the Appeal and Reserved Costs
Outcome
Costs orders made in favour of the appellants against the first respondent.
Legal Topics
['costs at First Instance After Successful Appeal' 'costs of Appeal' 'separate Representation' 'pro Bono Counsel Costs' 'immigration Assessment Authority' 'exceptional Circumstances Under S 473 Dd']
['administrative and Constitutional Law and Human Rights' 'costs' 'migration'] ['costs at First Instance After Successful Appeal' 'costs of Appeal' 'separate Representation' 'pro Bono Counsel Costs' 'immigration Assessment Authority' 'exceptional Circumstances Under S 473 Dd']

Case Brief

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Procedural Posture

Costs Determination Following Successful Migration Appeal / Decided on the Papers After the Full Court Allowed the Appeal and Reserved Costs

Legal Issues

  1. 1 ['Whether the costs order made by the Federal Circuit Court should be disturbed where the appeal succeeded on a basis said to differ from the argument at first instance.' "Whether the first respondent should pay the appellants' costs at first instance." 'Whether the first respondent should pay two sets of appeal costs because the appellant father and appellant son were separately represented.' 'Whether the costs of the appeal should exclude work related to the argument about separate representation of the two appellants.' 'Whether an order should be made under r 4.19(3) of the Federal Court Rules 2011 (Cth) for costs to be paid directly to pro bono counsel.']

Ratio Decidendi

The appeal succeeded on a basis sufficiently related to Ground 1 as argued before and rejected by the primary judge, so the first respondent should pay the applicants' costs at first instance. On the appeal, there was at least a possible conflict of interest between the appellant father and appellant son because, if it had been necessary to consider each appellant's separate potential exceptional circumstances and prior knowledge, the conflict would have been real. Accordingly, each appellant was entitled to costs of the appeal, including work related to the argument about separate representation, and those costs were payable directly to pro bono counsel under r 4.19(3).

Court Disposition

Costs orders made in favour of the appellants against the first respondent.

Orders

  • ["In place of the costs order made by the primary judge, the first respondent pay the applicants' costs, as agreed or taxed." "The first respondent pay each of the appellants' costs of the appeal, as agreed or taxed, those costs not to exclude the work related to the argument about separate representation of the two...