AVN20 v Federal Circuit Court of Australia (No 2) [2020] FCA 1457

AVN20 v Federal Circuit Court of Australia (No 2) [2020] FCA 1457

The applicants failed on the whole of their claim, including their core claim that breach of s 91X(2) of the Migration Act resulted in jurisdictional error, so the ordinary position that costs follow the event applied. The evidence did not show that the Minister was at fault for failing to detect further s 91X breaches, the Minister's unsuccessful abuse of process submission substantially overlapped with the facts relevant to the applicants' claims and did not significantly prolong or enlarge the proceeding, and no other circumstance justified departure from the usual costs order. It was appropriate to use the lump-sum costs procedure.

Jurisdiction
Australia
Judgment Date
12 October 2020
Procedural Posture
Application Under S 39 B of the Judiciary Act 1903 (cth) / Costs Determination After Dismissal of the Application; Determined on the Papers
Outcome
The first and second applicants were ordered to pay the second respondent's costs of the proceeding, with costs to be addressed through the Court's lump-sum costs procedure.
Legal Topics
['costs Follow the Event' 'special Circumstances for Costs Orders' 'lump Sum Costs Procedure' 'section 91 X Migration Act Breaches' 'jurisdictional Error']
['costs' 'administrative and Constitutional Law and Human Rights' 'migration'] ['costs Follow the Event' 'special Circumstances for Costs Orders' 'lump Sum Costs Procedure' 'section 91 X Migration Act Breaches' 'jurisdictional Error']

Case Brief

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Procedural Posture

Application Under S 39 B of the Judiciary Act 1903 (cth) / Costs Determination After Dismissal of the Application; Determined on the Papers

Legal Issues

  1. 1 ["Whether the first and second applicants should pay the second respondent's costs after the application was dismissed." "Whether special circumstances justified an order that each party bear its own costs or a substantial offset of the second respondent's costs." "Whether the Court's lump-sum costs procedure should be used."]

Ratio Decidendi

The applicants failed on the whole of their claim, including their core claim that breach of s 91X(2) of the Migration Act resulted in jurisdictional error, so the ordinary position that costs follow the event applied. The evidence did not show that the Minister was at fault for failing to detect further s 91X breaches, the Minister's unsuccessful abuse of process submission substantially overlapped with the facts relevant to the applicants' claims and did not significantly prolong or enlarge the proceeding, and no other circumstance justified departure from the usual costs order. It was appropriate to use the lump-sum costs procedure.

Court Disposition

The first and second applicants were ordered to pay the second respondent's costs of the proceeding, with costs to be addressed through the Court's lump-sum costs procedure.

Orders

  • ["The first and second applicants pay the second respondent's costs of the proceeding." "On or before 4 pm on 30 October 2020, the second respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court's Costs Practice Note (GPN-COSTS) dated 25 October...