Ngatoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2023] FCA 1384

Ngatoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2023] FCA 1384

Although the applicant should have given the Minister notice before 8 March 2023 of his intention to seek an adjournment, there was no evidence enabling the Court to determine from what point any of the Minister's preparation costs were thrown away. The enactment of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) shortly before the listed hearing was a change in circumstance warranting an adjournment for the applicant to consider his position. In those circumstances, neither party should recover the costs of preparing for and attending on 8 March 2023, while the Minister should pay the applicant's costs of the proceedings otherwise.

Jurisdiction
Australia
Judgment Date
09 November 2023
Procedural Posture
Costs Determination in Federal Court Migration Judicial Review Proceedings / After Orders Were Made in Favour of the Applicant on the Originating Process; Reserved Costs Determined on the Papers
Outcome
No order was made as to the costs of the hearing adjourned on 8 March 2023; the first respondent was ordered to pay the applicant's costs of the proceedings, including any reserved costs, as assessed or agreed.
Legal Topics
['costs Thrown Away' 'adjournment of Final Hearing' 'visa Cancellation Under S 501(3 A) of the Migration Act 1958 (cth)' 'aggregate Sentences' 'federal Court Costs Discretion']
['administrative Law' 'migration Law' 'costs'] ['costs Thrown Away' 'adjournment of Final Hearing' 'visa Cancellation Under S 501(3 A) of the Migration Act 1958 (cth)' 'aggregate Sentences' 'federal Court Costs Discretion']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Determination in Federal Court Migration Judicial Review Proceedings / After Orders Were Made in Favour of the Applicant on the Originating Process; Reserved Costs Determined on the Papers

Legal Issues

  1. 1 ['Whether the Minister should have the costs thrown away consequent on the adjournment of the final hearing on 8 March 2023.' 'Whether costs should follow the event, including the costs reserved on 8 March 2023.' "Whether the change effected by the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) warranted the applicant's adjournment and affected the appropriate costs order."]

Ratio Decidendi

Although the applicant should have given the Minister notice before 8 March 2023 of his intention to seek an adjournment, there was no evidence enabling the Court to determine from what point any of the Minister's preparation costs were thrown away. The enactment of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) shortly before the listed hearing was a change in circumstance warranting an adjournment for the applicant to consider his position. In those circumstances, neither party should recover the costs of preparing for and attending on 8 March 2023, while the Minister should pay the applicant's costs of the proceedings otherwise.

Court Disposition

No order was made as to the costs of the hearing adjourned on 8 March 2023; the first respondent was ordered to pay the applicant's costs of the proceedings, including any reserved costs, as assessed or agreed.

Orders

  • ['There be no order as to the costs of the hearing adjourned on 8 March 2023.' "The first respondent pay the applicant's costs of the proceedings, including any reserved costs, as assessed or agreed."]