FJS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 433

FJS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 433

The primary judge erred by treating scale costs as requiring a "good reason" for departure and by relying on an incomplete costs affidavit. The FCFC Act and FCFC Rules confer a broad discretion as to costs and provide several discretionary mechanisms for assessing costs in migration proceedings; there is no bias or weighting in favour of Schedule 2 scale costs requiring "good reason", exceptional circumstances or unusual complexity before another mechanism may be selected. On the uncontested evidence, the scale amount was unlikely to represent a fair indemnity, so the appropriate order was that the Minister pay the appellant's FCFC costs as agreed or taxed under Part 40 of the Federal...

Jurisdiction
Australia
Judgment Date
30 April 2024
Procedural Posture
Appeal From Costs Orders in a Migration Proceeding / Appeal From FJS18 V Minister for Immigration, Citizenship and Multicultural Affairs (no 2) [2022] Fed Cfam C2 G 1007
Outcome
Appeal allowed; FCFC costs order set aside; costs discretion re-exercised in favour of the appellant.
Legal Topics
['discretion to Award Costs' 'scale Costs in Federal Circuit and Family Court Migration Proceedings' 'departure From Schedule 2 Costs' 'taxation Under Part 40 of the Federal Court Rules 2011 (cth)' 'house V the King Error' 'procedural Fairness']
['administrative Law' 'migration Law' 'costs'] ['discretion to Award Costs' 'scale Costs in Federal Circuit and Family Court Migration Proceedings' 'departure From Schedule 2 Costs' 'taxation Under Part 40 of the Federal Court Rules 2011 (cth)' 'house V the King Error' 'procedural Fairness']

Case Brief

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Procedural Posture

Appeal From Costs Orders in a Migration Proceeding / Appeal From FJS18 V Minister for Immigration, Citizenship and Multicultural Affairs (no 2) [2022] Fed Cfam C2 G 1007

Legal Issues

  1. 1 ['Whether the discretion to award costs in the Federal Circuit and Family Court of Australia (Division 2) in a migration proceeding is constrained by a requirement that departure from scale costs be preconditioned on a "good reason".' 'Whether the primary judge erred by proceeding on the basis of an incomplete costs affidavit.' 'Whether the Federal Court should re-exercise the costs discretion or remit the matter to the primary judge.']

Ratio Decidendi

The primary judge erred by treating scale costs as requiring a "good reason" for departure and by relying on an incomplete costs affidavit. The FCFC Act and FCFC Rules confer a broad discretion as to costs and provide several discretionary mechanisms for assessing costs in migration proceedings; there is no bias or weighting in favour of Schedule 2 scale costs requiring "good reason", exceptional circumstances or unusual complexity before another mechanism may be selected. On the uncontested evidence, the scale amount was unlikely to represent a fair indemnity, so the appropriate order was that the Minister pay the appellant's FCFC costs as agreed or taxed under Part 40 of the Federal...

Court Disposition

Appeal allowed; FCFC costs order set aside; costs discretion re-exercised in favour of the appellant.

Orders

  • ['The appeal be allowed.' 'The costs order made by the Federal Circuit and Family Court on 1 December 2022 be set aside.' "The First Respondent pay the Appellant's costs of the proceeding in the Federal Circuit and Family Court as agreed or taxed in accordance with Part 40 of the Federal Court Rules 2011 (Cth)."...