Han v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This matter gives rise to a very narrow issue, namely, the issue of payment of costs in respect of an appeal of a decision of a Federal Magistrate which subsequently has been set aside and whether costs should follow the event. 2 On 27 February 2006 the appellant filed a notice of appeal from a decision of Jarrett FM of 6 February 2006, wherein the learned Federal Magistrate had dismissed the appellant's application and ordered the appellant to pay the costs of and incidental to that application. The application was for a review of a decision made by the Migration Review Tribunal affirming a decision not to grant the appellant a student (temporary) (class TU) higher education sector visa. Jarrett FM noted during the course of his judgment as follows: · the appellant had stated that he had never received a letter from the then Department of Immigration and Multicultural and Indigenous Affairs ('Department') nor did he receive the decision of the Department of 29 June 2005 until he went to their Brisbane offices on 2 August 2005 · the Tribunal determined the application for review of the Department's decision on 15 November 2005, finding against the appellant · there was nothing in the application for review filed with the Federal Magistrates Court which indicated the basis upon which the appellant pursued the application in that court · there was no prospect of the application for review succeeding · the appellant had not appeared at the application for review before his Honour · no reasonable cause of action was disclosed in relation to the proceeding · the application was dismissed pursuant to r 13.10 of the Federal Magistrates Court Rules 2001 · costs should follow the event. 3 Subsequently, on 14 June 2006 the appellant filed an application seeking an order that the orders of Jarrett FM be set aside. On 28 August 2006, Jarrett FM made orders setting aside his orders of 6 February 2006, that the applicant pay the respondent's costs of and incidental to its application filed 14 June 2006, and that the Migration Review Tribunal be joined as a second respondent to those proceedings. His Honour also made directions including that the appellant's further application be listed for hearing on 23 October 2006 (Han v Minister for Immigration (No 2) [2006] FMCA 1251). 4 I understand that the further application was heard by Jarrett FM on 23 October 2006, and his Honour has reserved judgment. 5 As a result of this sequence of events, it follows that there is no reason for the appellant to maintain its appeal from the judgment of Jarrett FM of 6 February 2006. Indeed, the appellant before me this morning submitted draft orders including that the appeal be dismissed. 6 The issue upon which the parties do not agree however is the issue of costs in this appeal. 7 In summary, the appellant has sought orders that: 1. The appeal be dismissed. 2. Costs of and incidental to the appeal follow the decision of Jarrett FM currently reserved (Federal Magistrates Court proceedings File No BRG772/2005), with the result that if the appellant is successful before Jarrett FM, the respondent should pay the costs of the appeal, and vice versa if the respondents are successful before Jarrett FM. 8 In support of these orders sought, the appellant has submitted: · before Jarrett FM the appellant has raised four arguable grounds of jurisdictional error. · there is every prospect that the application for judicial review will be successful. · the basis of the success of the appellant will be an affidavit of Ms Samantha Baldey, the delegate of the respondent who made the original decision not to grant the visa, who deposes to the fact that she placed the notice of decision in an unspecified out-tray and stamped it 'registered mail'. In fact, the appellant submits, no registered mail was ever produced, and a credible reason why the appellant never received the notice of decision was that it had never been posted. · it would be unjust if the appellant was successful in the judicial review application but had to pay the costs of the appeal caused by the original application for summary judgment. The respondent ought to have ascertained if the decision was actually posted or not before bringing an application for summary judgment before Jarrett FM. Mr Boccabella for the appellant directed my attention this morning to an affidavit of a solicitor with Clayton Utz, who deposed that she was instructed 'on the basis of the information currently in the position of the respondent, to file and serve a response because the respondent contends that no reasonable cause of action is shown and that pursuant to r 44.12 of the Federal Magistrates Court Rules 2001 this matter should be dismissed without proceeding to a final hearing'. · The just course would be to make the costs of the appeal costs in the cause of the application before Jarrett FM. · Alternatively, Mr Boccabella submitted in court this morning that an alternative approach could be for the court to adjourn hearing this matter in relation to the costs of the appeal until after the decision of Jarrett FM in the substantive matter is delivered. · Leave is not required from the Federal Court to bring an appeal from a summary judgment under r 13.10 Federal Magistrates Court Rules. 9 In summary, the respondent has submitted: · Where an appeal arises from a decision which has now been set aside, the appeal should be dismissed and the appellant ordered to pay the respondent's costs of and incidental to the appeal. · The appropriate way to proceed in relation to decisions in the Federal Magistrates Court under r 13.10 is to make an application to set aside the decision under r 16.05. The appellant eventually did this and was successful in having the decision set aside. This approach has been endorsed in a number of cases including MZWXC v MIMIA [2006] FCA 172 and MLGXAL v MIMIA [2006] FCA 966. · The appeal in this matter was always misconceived as to the proper course to proceed, and incompetent as no application for leave to appeal was filed. · The decision of Jarrett FM on the substantive hearing has no relevance to this appeal. Further, Ms Wheatley for the respondent submitted in court this morning that costs in this appeal bear no relevance to the new matter before Jarrett FM. 10 In my view, a decision of a Federal Magistrate dismissing an application pursuant to r 13.10 Federal Magistrates Court Rules 2001 is an interlocutory decision, requiring leave of the Federal Court to appeal: Rana v University of South Australia [2004] FCA 559; Gauci v Kennedy [2006] FCA 869. No leave to appeal has been sought. However this point in my view is moot because, as I indicated earlier in this judgment, both parties were of the view that the appeal be dismissed. The real issue before me is in relation to costs. 11 The Federal Court has jurisdiction to award costs, and as a general rule the award of costs is in the discretion of the court: s 43 Federal Court of Australia Act 1976 (Cth). 12 As a general rule, costs of an application follow the event. A key reason for this is because, as pointed out by the Full Court in Cilli v Abbott (1981) 53 FLR 108 at 111, 'the object of costs is not to penalise; it is to indemnify the successful party in relation to expense to which he has been put by reason of legal proceedings'. This principle was adopted in Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543, Toohey J at 563 and McHugh J at 567 in the context of both civil and criminal proceedings. 13 It is strongly argued by the respondent, on the basis of such authorities as MZWXC and MLGXAL that the appropriate course for the appellant to have adopted in the first place would have been to apply to have the decision of Jarrett FM set aside. I note from the notice of appeal that the appellant was unrepresented, or at least appeared unrepresented, at the time of filing, and he may not have understood that an application to set aside the judgment of 6 February 2006 was the proper course in the circumstances. Irrespective of this, the respondent has been put to expense by legal proceedings in the form of this appeal, and this appeal has now been rendered nugatory by the appellant successfully applying to have the original judgment set aside and a fresh application determined by the Federal Magistrates Court. 14 Before me this morning Mr Boccabella pressed that the appellant's case has merit, and that this should influence my approach to making a costs order in this matter. Counsel distinguished MZWXC and MLGXAL on this basis - namely that the applications in those cases appeared to lack merit. In my view it is unnecessary to examine this issue in detail, other than to observe that it is clear that there is sufficient merit in the appellant's case to justify orders setting aside the decision of Jarrett FM of 6 February 2006, but that the merits of the appellant's application before Jarrett FM will be considered by Jarrett FM in his judgment in due course. All parties agree that this appeal should be dismissed because it has been overtaken by events at the appellant's instigation. The merits of the substantive case now before Jarrett FM are of little relevance in the context before me. 15 It is unfortunate that the parties could not reach agreement in relation to costs and avoid incurring further costs in relation to this matter. In my view, the circumstances of this case do not warrant departure from the usual order that costs should follow the event. Any other order would, in my view, not only be unjust to the respondent, but could also lead to unnecessary and difficult complications of requiring the costs of this appeal to follow decisions (including potentially appeal decisions) in another matter which is currently before Jarrett FM. In my view this would be inappropriate.