Joel v Migration Agents Registration Authority

REASONS FOR JUDGMENT (COSTS) 1 At the time of delivery of judgment in this matter on 22 December 2000, I directed the parties to provide written submissions as to the appropriate costs order to be made: see Joel v Migration Agents Registration Authority [2000] FCA 1919. Subsequently the Applicant has provided submissions in support of an order for costs entirely in his favour, or alternatively as to three-quarters of his costs, whilst the Respondent has contended for an order that each party bear his or its own costs, as the case may be. 2 As appears from para [25] of the judgment referred to in [1] above, the Applicant propounded some fourteen or so issues as grounds for review of three notices issued by the Respondent to the Applicant purportedly pursuant to the Migration Act 1958 (Cth), some of which were overlapping in scope. As further appears from the following para [26], the Respondent for its part propounded three jurisdictional issues, though the second carried only an academic consequence. 3 In the result, the Applicant succeeded upon the following issues of particular significance: (i) In so far as the second notice required information as to advice given by the Respondent in relation to a certain migration class action, the same had no operation or effect, on the ground that to answer the same would involve infringement of legal professional privilege. (ii) In so far as the second notice required the provision of photocopies of the Applicant's records, the same was invalid; (iii) In so far as the third notice in effect maintained the requirements of the second notice as to (i) and (ii) above, the same was also of no force or effect. 4 The Respondent succeeded however upon the following issues: (i) The first notice was not a reviewable decision; (ii) The second notice was not reviewable upon the ground of the taking into account of irrelevant considerations; (iii) The second notice was not reviewable upon the ground of failure to take into account the Applicant's logistical resources; (iv) The second notice was not reviewable upon the ground of unreasonableness in relation to the provision of certain information by statutory declaration. (v) The third notice operated consequentially to (ii) to (iv) above. 5 Additionally, I have been referred to the Applicant's so-called open offer to the Respondent of 18 August 2000 (reproduced at para [19] of the judgement), and to a certain 'without prejudice offer of settlement' communicated by the Respondent to the Applicant on 13 October 2000. In the circumstances of the case as generally set out in my judgment already delivered, I am not persuaded that either of such circumstances should bear on the decision which I should make as to costs orders. 6 Though in the numerical terms of separate issues described in [3-4] above, the Respondent had the more success, I would not determine the issue of costs by reference to that factor alone. The two issues upon which the Applicant succeeded involved issues of more far reaching importance to the parties, and also involved more complexity of debate. 7 I have been referred by the Respondent to discretionary considerations which may be taken into account where a party has been only partly successful and which were discussed in Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-748 at 48,136 per Toohey J. The same have been subsequently applied in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No. 2) [2000] FCA 602 at [52-54] per Goldberg J. In the context of the issues broadly described in [3-4] above, and having regard to the way in which the same were litigated, I do not think that it would be practical for me to order that each party bear the costs and expenses of litigating those portions of the litigation upon which he or it failed (as the case may be), as it would be too difficult to adequately partition the work undertaken in relation to each issue. 8 Having re-read my judgment of 22 December 2000, I have reached the conclusion that the appropriate result should be to order that the Respondent should bear one-quarter of the costs of the Applicant of the proceedings, since in my opinion, the Applicant achieved marginally the more significant success. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.