Federal Court. For migration proceedings in the Federal Circuit and Family Court, is there "bias or weighting to be accorded in favour of scale costs such that there must be a “good reason”, “exceptional circumstances” or a case of “unusual complexity” before one of the other options is selected"?
Section 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act) relevantly provides:
…
(2) The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(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 22.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFC Rules) provided:
Order for costs
(1) An application for an order for costs may be made:
(a) at any stage in a proceeding; or
(b) within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Part 40 of the Federal Court Rules; or
(d) set a time for payment of the costs, which may be before the proceeding is concluded.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: If the Circuit Court elects to do no more than indicate (in an unspecified manner) that a party is entitled to costs, is the default position that the party is entitled to costs in accordance with Schedule 2 to the FCFC Rules?
Question 2: May the Circuit Court determine under r 22.02 fo the FCFC Rules that costs are to be paid on a “party-party”, “solicitor-client” or “indemnity” basis, or another basis?
Question 3: Is there "bias or weighting to be accorded in favour of scale costs such that there must be a “good reason”, “exceptional circumstances” or a case of “unusual complexity” before one of the other options is selected"?
The FCA answered those questions as follows: