Background
Md Omar Faruq Shuvo appealed a Federal Circuit and Family Court decision concerning the Minister for Immigration and Multicultural Affairs. The appeal was listed for hearing on 28 August 2026.
Three days before the hearing, Shuvo, who was self-represented, told the Registry that he wished to discontinue because of significant financial hardship and concern about meeting his own and the Minister’s costs. The Minister agreed that the appeal could be discontinued, but sought costs under rule 36.73(4) of the Federal Court Rules 2011, proposing party/party costs of $5,625.
The Court’s Holding
Justice Shariff granted leave for Shuvo to discontinue the appeal and made no order as to costs. Although rule 36.73(4) states the ordinary position that an appellant discontinuing an appeal pays each respondent’s costs, it does not displace the Court’s broad discretion under s 43 of the Federal Court of Australia Act 1976 or its procedural powers.
The Court rejected the Minister’s contention that “exceptional” circumstances were required to depart from the default rule. Where proceedings end without a hearing on the merits, the Court will not conduct a hypothetical merits trial merely to decide costs. Costs may nevertheless be appropriate where one side was almost certain to succeed, the discontinuance effectively capitulates, or a party acted unreasonably. None of those bases was established here. Shuvo’s financial hardship was not itself determinative, but explained why the appeal was not pursued and left the Court unable to assess whether the Minister would have succeeded.
Key Takeaways
- The default costs consequence of discontinuing an appeal under rule 36.73(4) remains subject to the Federal Court’s discretion.
- A party need not prove exceptional circumstances to obtain no order as to costs after a pre-hearing discontinuance.
- Financial hardship alone does not excuse costs, but may be relevant in the overall discretionary assessment.
Why It Matters
The decision confirms that the default rule for appeal discontinuances is not automatic. In a case ending before a merits hearing, the Court will focus on whether there is a sound basis to treat one party as having clearly lost, surrendered, or acted unreasonably—not simply on costs incurred by the respondent.