Federal Court: Bilal v Australian Information Commissioner Costs Mandated

• The Federal Court ordered the Australian Information Commissioner to pay an applicant's costs after quashing a decision not to investigate a privacy complaint.
• The ruling in *Bilal v Australian Information Commissioner (Costs) [2026] FCA 1275* confirmed that costs for self-represented litigants are subject to taxation, not an upfront limitation to filing fees.
• Justice Lenehan followed a precedent set by Justice Stewart in a related case, rejecting the Commissioner's argument to limit costs for the self-represented applicant.
• This decision has implications for regulator costs liability in Australia, particularly when procedural failures lead to successful judicial review applications.
• Other recent Federal Court decisions also highlight the court's focus on awarding costs for procedural issues, such as counsel's inability to maintain a reliable video link during a hearing.

The Federal Court's decision underscores that the extent of costs for self-represented litigants is a matter for taxation, not an upfront limitation based solely on their status.

The Federal Court has mandated that the Australian Information Commissioner cover the application costs incurred by an individual applicant, following the quashing of the Commissioner's decision to decline a privacy complaint investigation. This significant ruling, detailed in *Bilal v Australian Information Commissioner (Costs) [2026] FCA 1275*, stems from a judicial review process initiated after the Commissioner refused to investigate a complaint.

The case originated with a privacy complaint filed on 24 March 2025 against EML Group. On 29 September 2025, the respondent Commissioner formally refused to investigate the matter. Subsequently, on 20 October 2025, the applicant sought a judicial review of this decision before the Federal Court.

Justice Craig Lenehan presided over a case management hearing on 27 March 2026, where orders were issued concerning timetabling, evidence, and submissions. The court noted a substantial overlap in the proposals put forth by both parties, ultimately leading to Justice Lenehan issuing consent orders. The core of the dispute, and the subsequent costs order, revolved around the Commissioner's initial refusal to conduct the privacy complaint investigation.

A key aspect of the *Bilal v Australian Information Commissioner costs* decision was the Federal Court's stance on awarding costs to a self-represented litigant. The applicant in this matter proceeded without a solicitor on record, prompting the Commissioner to argue that any costs awarded should be limited to disbursements for out-of-pocket expenses paid to third parties.

Justice Lenehan, however, found no basis to deviate from a prior approach established by Justice Stewart in an earlier, related proceeding involving the same parties and similar facts, *Bilal v Australian Information Commissioner [2026] FCA 376*. In that case, Justice Stewart had similarly ordered the Commissioner to pay the applicant's costs, explicitly rejecting the argument to limit costs solely to filing fees, despite acknowledging the applicant's self-represented status.

Justice Lenehan affirmed this principle, stating that whether the applicant could demonstrate incurred expenses or fees in the litigation was a matter for taxation, not a predetermined limitation. This position clarifies that the entitlement to costs, once an order is made, is subject to assessment rather than an automatic restriction based on the litigant's lack of legal representation.

This `Australian Information Commissioner costs order` carries significant implications for `regulator costs liability Australia`, particularly in the context of `Federal Court judicial review costs`. The ruling reinforces that regulatory bodies, including the Commissioner, can be held financially accountable for procedural failures, such as an unjustified refusal to conduct a `privacy complaint investigation costs`.

The Federal Court's consistent approach to `self-represented litigant costs Australia` is particularly noteworthy. It signals that courts may not automatically restrict cost recovery to mere filing fees or disbursements for individuals who represent themselves. This could influence strategic advice for lawyers and applicants considering challenges to regulatory decisions, as the prospect of recovering more substantial costs may encourage judicial review where procedural errors are evident.

This decision underscores the judiciary's role in ensuring accountability for administrative actions and provides a clearer framework for cost recovery in such challenges, regardless of whether the applicant engages formal legal representation.

The Federal Court has recently issued several other cost-centred decisions, indicating a broader focus on procedural compliance and accountability. On 22 July 2026, the court awarded an applicant lump sum costs of $1,000. This award was made because the respondent's counsel failed to maintain a reliable, continuous video or audio link during a hearing, leading to non-appearance.

Another instance on 23 December 2025 saw the court ordering a plaintiff to pay the costs of two other parties. This particular order was connected to interlocutory processes where the plaintiff had requested the production of documents over which the other parties successfully asserted legal professional privilege. These cases collectively demonstrate the Federal Court's active role in adjudicating costs across various procedural contexts, reinforcing the importance of adherence to court processes and legal principles.

This ruling confirms that the Australian Information Commissioner, and potentially other regulators, can be ordered to pay an applicant's costs for procedural failures like declining to investigate a complaint. Lawyers should note that courts may not limit costs for self-represented litigants to mere filing fees, influencing strategic advice on challenging regulatory decisions and potential cost recovery.

Source: Original reporting via Australasian Lawyer