Are judicial review filing fees recoverable?

Federal Court (Full Court). Can the Court set the amount of costs in migration litigation at a level that exceeds or is less than the scale in Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules)? If so, does the legislative scheme impose on an applicant for costs any burden to prove that departure from the scale of costs in Schedule 2 to the GFL Rules is justified or warranted? Can a successful judicial review applicant recover the filing fee, in addition to costs incurred with professional fees?

Section 214(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides (emphasis added):

214    Costs

(3)     Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit and Family Court of Australia (Division 2) or Judge.

Rule 22.09 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) provides:

22.09     Costs and disbursements

Unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to:

(a)     costs in accordance with Schedule 2; and

(b)     disbursements properly incurred.

Note 1:     For costs in a proceeding to which the Bankruptcy Act 1966 applies, see Part 13 of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021.

Note 2:     For costs in a migration proceeding, see rule 29.13 and Part 2 of Schedule 2 to these Rules.

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Do the words emphasised above under s 214(3) "allow for the discretionary power to be made subject to express or implied limits, or to be given further content, in particular circumstances"?

Question 2: Is the ability to make a costs application not found in the FCFCOA Act but in the GFL Rules?

Question 3: May the FCFCOA make an order that states that a party is to pay costs in an amount specified in the order?

Question 4: Should the term “disbursements properly incurred” in r 22.09 be construed as including filing fees?

Question 5: In any given case, might the Court set the amount of costs at a level that exceeds or is less than the scale in Schedule 2 to the GFL Rules?

Question 6: In any given case, might the Court fix a separate amount for disbursements?

Question 7: Can it be said that, although s 13 of the Acts Interpretation Act 1901 (Cth) has provided that notes form part of the legislation and need to be given effect in any constructional choices, "notes are not operative provisions in the sense of conferring or affecting statutory power; they are a road map to assist in the navigation of a legislative scheme, and they point the reader to provisions which may interact with or affect the provision under consideration"?

Question 8: If the answer to Question 5 is 'yes', can it nevertheless be said that "the presence of r 29.13, and the presence of Pt 2 of Sch 2 in the scheme for the award of costs by the FCFCOA in migration proceedings evinces an intention that any application for costs be measured or assessed in a context where the Court (or Judge) is conscious that a majority of the Judges of the Court have agreed to fix a scale of costs considered to be generally applicable to migration proceedings, and considered to provide an express benchmark for what may be seen as fair and just in a given case"?

Question 9: If the answer to Question 8 is 'yes', can it be said that it "remains up to an individual Judge, in the particular circumstances of the case before them, and being faithful to the broad discretion ins 214(3) of the FCFCOA Act, informed by r 22.02 of the GFL Rules, to decide if the scale costs are in fact fair and just in the circumstances of the particular costs application before the Court"?

Question 10: If the answer to Question 5 is 'yes', does the legislative scheme impose on an applicant for costs any burden to prove that departure from the scale of costs in Schedule 2 to the GFL Rules is justified or warranted?

Question 11: Do the separate references to “costs” and “disbursements” in r 22.09 mean that the singular scale figure in Schedule 2 to the GFL Rules should not be interpreted as including disbursements?

Question 12: Is it "unlikely to be a reasonable exercise of the costs discretion to fix an amount of costs which would result in a successful applicant doing little more than recovering the filing fee they had to pay to commence the proceeding, and not requiring the unsuccessful party to compensate a successful applicant for a reasonable amount of the legal costs incurred in prosecuting the proceeding to its successful conclusion"?

The FCAFC answered those questions as follows:

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