DAB16 v Minister for Home Affairs (No 2) [2021] FCA 120

DAB16 v Minister for Home Affairs (No 2) [2021] FCA 120

The earlier costs orders could be set aside because they were interlocutory and, in any event, were made in the absence of the appellant in the relevant sense. Mr Smart contravened s 486E because he encouraged the appellant to commence and continue an appeal that had no reasonable prospect of success and did not give proper consideration to its prospects. His arguments rested on a flawed understanding of fundamental principles of judicial review, appellate review, the limits on receiving new evidence, and the distinction between judicial review and merits review. The delay in resolving costs was regrettable but did not justify refusing relief because no sufficient evidentiary prejudice...

Jurisdiction
Australia
Judgment Date
23 February 2021
Procedural Posture
Migration Litigation Appeal; Costs Application Under Pt 8 B of the Migration Act 1958 (cth) / After Appeal Dismissed and Finding That the Appeal Had No Reasonable Prospect of Success; Determination of Costs Orders Under S 486 F and Application to Set Aside Earlier Costs Orders
Outcome
Earlier costs orders in paragraphs 4, 5 and 7 of the orders made on 18 February 2020 were set aside; costs and repayment orders were made against Mr Haidari Smart under s 486F of the Migration Act 1958 (Cth).
Legal Topics
['protection Visa Judicial Review' 'no Reasonable Prospect of Success' 'costs Orders Against Legal Practitioner' 'contravention of S 486 E of the Migration Act 1958 (cth)' 'setting Aside Interlocutory Costs Orders' 'judicial Review and Merits Review Distinction']
['migration Law' 'administrative Law' 'civil Procedure' 'costs'] ['protection Visa Judicial Review' 'no Reasonable Prospect of Success' 'costs Orders Against Legal Practitioner' 'contravention of S 486 E of the Migration Act 1958 (cth)' 'setting Aside Interlocutory Costs Orders' 'judicial Review and Merits Review Distinction']

Case Brief

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Procedural Posture

Migration Litigation Appeal; Costs Application Under Pt 8 B of the Migration Act 1958 (cth) / After Appeal Dismissed and Finding That the Appeal Had No Reasonable Prospect of Success; Determination of Costs Orders Under S 486 F and Application to Set Aside Earlier Costs Orders

Legal Issues

  1. 1 ['Whether the earlier costs orders made on 18 February 2020 could and should be set aside under r 39.05(a) or r 39.05(c) of the Federal Court Rules 2011 (Cth).' 'Whether Mr Haidari Smart encouraged the appellant to commence or continue migration litigation that had no reasonable prospect of success.' 'Whether Mr Haidari Smart gave proper consideration to the prospects of success of the appeal within the meaning of s 486E(1)(b)(i) of the Migration Act 1958 (Cth).' 'Whether orders should be made under s 486F(1)(a) and s 486F(1)(c)(ii) of the Migration Act 1958 (Cth).' 'Whether delay in resolving the costs issues justified refusing the orders sought.']

Ratio Decidendi

The earlier costs orders could be set aside because they were interlocutory and, in any event, were made in the absence of the appellant in the relevant sense. Mr Smart contravened s 486E because he encouraged the appellant to commence and continue an appeal that had no reasonable prospect of success and did not give proper consideration to its prospects. His arguments rested on a flawed understanding of fundamental principles of judicial review, appellate review, the limits on receiving new evidence, and the distinction between judicial review and merits review. The delay in resolving costs was regrettable but did not justify refusing relief because no sufficient evidentiary prejudice...

Court Disposition

Earlier costs orders in paragraphs 4, 5 and 7 of the orders made on 18 February 2020 were set aside; costs and repayment orders were made against Mr Haidari Smart under s 486F of the Migration Act 1958 (Cth).

Orders

  • ['Pursuant to r 39.05(a) and r 39.05(c) of the Federal Court Rules 2011 (Cth), the orders in paragraphs 4, 5 and 7 of the orders made on 18 February 2020 are set aside.' "Pursuant to s 486F(1)(a) of the Migration Act 1958 (Cth) Mr Haidari Smart is to pay the Minister's costs of the appeal, fixed in the sum of...