De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT ON COSTS 1 This appeal was heard by the Full Court on 21 November 2003. On 18 December 2003, the Court delivered judgment and the appeal was dismissed with costs on the ground that the appeal was incompetent. 2 The matter has a long history of non-appearances, and non-compliance with the Federal Court Rules and with directions of the Court. French J, who heard the matter at first instance, concluded that the Court did not have jurisdiction to entertain the application which, on its face, his Honour considered hopeless. His Honour therefore dismissed the application but made no order for costs. His Honour subsequently made an order the appellant, Mr De Alwis, pay the Minister's costs of the application. 3 The grounds of appeal consist of ten pages and specified twelve grounds. The Notice of Appeal was filed out of time and without leave. 4 On the hearing of the appeal, the Court heard Mr De Alwis at length on the question of whether leave should be granted to file a Notice of Appeal out of time. The Court noted that no relevant evidence was provided in support of the grounds relied on and that an affidavit sworn on 20 November 2003 did not address the question of why leave should be given. The Court refused leave and dismissed the appeal as incompetent because Mr De Alwis failed to furnish any satisfactory reasons, evidence, or explanation, as to why he had failed to comply. 5 The question of costs was reserved by the Full Court and directions were given that the respondent file submissions within fourteen days (which, due to the Christmas vacation, ended on 28 January 2004). This was done. The appellant was directed to file submissions in a further fourteen days, which would have been 11 February 2004. However, no submissions have been filed by Mr De Alwis. The respondent now seeks costs on an indemnity basis on the ground that the appellant did not comply with the requirements of O 52 r 15 of the Federal Court Rules in particular, and in light of the fact that he provided no evidence to support his application. At the conclusion of submissions by Mr De Alwis on the appeal hearing, the Court did not call on the respondent. 6 The purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: see Latoudis v Casey (1990) 170 CLR 534; Ohn v Waltob (1995) 36 NSWLR 77 at 79 per Gleeson CJ. The usual rule is that costs should be on a party-party basis, but that the Court has a wide and unfettered discretion to award costs on an indemnity basis in appropriate cases in particular circumstances: see Colgate-Palmolive v Cussons (1993) 46 FCR 225 at 231-234. 7 In deciding whether to award indemnity costs each exercise of discretion depends on the particular facts. Indemnity costs can be awarded where it appears that a proceeding is commenced or continued in circumstances where the applicant properly advised should have known there was no chance of success. In this case, that consideration coupled with the failure to attempt to comply with the rules or directions of the Court in this matter justifies the award of indemnity costs. The appellant properly advised should have known the appeal had no chance of success: see Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Limited (1988) 81 ALR 397 at 400-401 per Woodward J; Botany Municipal Council v Secretary, Department of the Arts, Sport, the Environment, Tourism & Territories (1992) 34 FCR 412 at 415. 8 The Court accepts the submissions of the respondent that the appeal was brought well out of time, was unsupported by evidence, it had no realistic prospect of success, and was not prepared or argued in any way helpful to the Court. The respondent says that in preparing for the hearing, costs were incurred in the retention and briefing of Counsel, and it is submitted that the respondents should be able to recover all of the costs reasonably incurred in relation to the appeal. 9 Accordingly, the order of the Court is that the appellant pay the respondent's costs of the appeal on an indemnity basis. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, RD Nicholson and Emmett.