The Minister for Immigration and another respondent sought to set off a costs order made in a non-citizen’s favour out of a costs order made in the minister’s favour in previous court proceedings. That was held to discourage pro-bono work challenging governmental decisions, writes Sergio Zanotti Stagliorio.
That ruling was made by the Federal Circuit and Family Court of Australia (Division 2) in GKX18 v Minister for Immigration and Multicultural Affairs (No 2) [2025] (Judge Riley) in proceedings brought by the applicant (‘GKX18’, a pseudonym) against the minister and the secretary of the Department of Home Affairs, for unlawful immigration detention.
Part of the background was captured by the judgment as follows:
“1. This is an application for the applicant’s costs up to and including 20 January 2025 in relation to an application for a writ of habeas corpus. The applicant had been held in immigration detention from May or June 2018 until 16 October 2024, being the second day of the trial ... The habeas corpus application remains on foot.
…
“3. The respondents concede that the applicant is entitled to costs on an ordinary basis, as agreed or assessed, up to and including 20 January 2025 ...
“4. The respondents also seek that they be entitled to set off the costs orders in favour of the first respondent, the minister, in previous proceedings in this court and the Federal Court. The applicant opposes any set-off.”
Having found that the applicant was entitled to costs (on an indemnity basis) in the present proceeding, Judge Riley said on the issue of whether they should be set off (emphasis added):
“87. The main reason that the applicant gave for opposing the set-off was that his lawyers were working on a conditional costs basis, and eating into any costs order with a set-off would discourage lawyers from acting on such a basis for other people in the future. The applicant submitted that was contrary to the public interest.
“88. I accept the applicant’s submission on this last point. That is, I accept that there is a public interest in people challenging governmental decisions being adequately legally represented, and allowing a set-off in circumstances such as the present may discourage appropriate lawyers from acting. This factor weighs particularly heavily in the present case, where, on the material presently before me, the respondents have behaved unreasonably. Consequently, I will order that the costs ordered in the present proceeding not be set off against the costs in previous proceedings.”
On a related note, in FJS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] at [43] onwards, Justice Burley of the Federal Court had rejected the minister’s contention that allowing the award of costs at the Federal Circuit and Family Court of Australia (Division 2) beyond the so-called “scale costs” would promote “rampant capitalism”.
Sergio Zanotti Stagliorio is a barrister and lecturer in migration law.
