McDade v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The reasons were given in this matter and orders made on 5 May 2000. Among the orders was one that costs be reserved. That order was acceded to by the Court on the submission for the respondent that the nature of the case was such that, although the appellant had succeeded in his appeal against the decision of the Immigration Review Tribunal ("the Tribunal"), there were other considerations which made it inappropriate to apply the usual rule that costs follow the event. 2 There is common ground between the parties as to the nature of the legal setting in which costs falls to be considered. The general discretion of the Court arises under s 43(2) of the Federal Court of Australia Act 1976 (Cth). It is accepted that the manner in which the discretion is to be exercised was appropriately summarised by Toohey J in Hughes v Western Australian Cricket Association (Inc) 1986 ATPR 40‑748 at 48,136 where he said: "1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order: Ritter v Godfrey [1920] 2 KB 47." 2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed: Forster v Farquhar [1893] 1 QB 564. 3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, 'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v Lombardi (1975) 13 SASR 4 at p 12." That statement of principle was approved by the Full Court in Queensland Wire Industries Pty Ltd v Broken Hill Pty Ltd (1987) 17 FCR 211 at 222 and has been applied frequently. However as the Full Court in Australian Trade Commission v Disktravel [2000] FCA 62 said, there is also to be considered as a caveat against too ready a resort to apportionment according to issue based outcomes, the observations of Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 at 15: "The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including, in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely upon his success in those particular issues." In Australian Trade Commission v Disktravel the Full Court accepted that the judgment as to apportionment is in the end an evaluative one; cf French J in Newcrest Mining (WA) Ltd v Commonwealth (unreported, Federal Court Judgment No 954 of 1993, 17 December 1993). 3 This matter comprised two applications namely: (a) an application by the first applicant under Part 8 of the Migration Act 1958 for an order of review ("the Migration Act application"); and (b) an application by the second, third and fourth applicants for relief under s 39B of the Judiciary Act 1903 ("the Judiciary Act application"). 4 The Migration Act application, as amended by order of Lee J on 9 July 1999, contained eight grounds of review and the amended Judiciary Act application contained four grounds in support of the orders sought. 5 The judgment allowed the Migration Act application and dismissed the Judiciary Act application. In allowing the Migration Act application, the applicant succeeded on only one of the eight grounds being in issue relating to statutory construction. 6 For the respondent it is submitted that this is a case in which an apportionment of costs is appropriate as the Migration Act application succeeded on only one of the eight grounds and the Judiciary Act application failed completely. It is submitted a substantial part of the hearing and preparation time was taken up with issues on which the applicants failed. It is further submitted that this matter is unlike the situation in Australian Trade Commission v Disktravel where the Full Court refused to apportion costs of the matter after a successful appeal although the appellant had not succeeded on the first limb of the appeal. For the respondent it is submitted that the grounds on which the applicant failed were ones on which the first applicant was bound to fail. 7 The orders which the respondents seek are that the second, third and fourth applicants should pay the respondent's costs of the Judiciary Act application. In respect of the Migration Act application it is submitted the respondent should not be ordered to pay more than one‑half of the applicants' costs. 8 For the applicants it is submitted that in respect of the Migration Act application, the respondent should pay the first applicant's costs. In respect of the Judiciary Act application it is submitted there should be no order as to costs. In support of the first proposed order it is said that the first applicant was a successful litigant and that costs usually follow the event. The fact that there were eight grounds only one of which was successful does not constitute a "special circumstances" justifying an order other than that costs should follow the event. It is submitted that the issues raised in argument on the appeal were not unreasonably raised. 9 Furthermore, it is submitted that there was nothing in the way in which the first applicant's case was conducted which would justify some other order than that costs should follow the event. It is submitted that all the matters argued were plainly arguable: cf Chu Sing Wun v The Minister for Immigration & Ethnic Affairs, (unreported Nicholson J Federal Court, 19 March 1997). 10 Furthermore, it is said that the Migration Act application came about because of the need for the first applicant to review the decision of the Tribunal which in turn had been based on a second notice issued by the respondent and found in the judgment to have been invalidly issued. 11 In relation to the Judiciary Act application the proposal for the second, third and fourth applicants that there should be no order to costs relies upon what are said to be "special circumstances" requiring deviation from the ordinary rule. These circumstances are firstly, that the application was dismissed not on the merits but because of lack of jurisdiction; secondly, the jurisdictional issues involved important questions of law concerning the scope and extent of s 485(1) of the Migration Act; thirdly, the application was made necessary as a result of the second notice found to have been invalidly issued by the respondent so that the respondent should not benefit from that action, in effect, by an order for costs. 12 In relation to the costs on the Migration Act application my opinion is that no apportionment of costs is appropriate. Although the appellant only succeeded on one of eight grounds, I consider that the other grounds were in the category of arguable grounds and did not involve issues unreasonably raised or inappropriate conduct in the case for the applicant. I therefore agree that the order should be that the respondent pay the first applicant's costs of the Migration Act application. 13 In relation to the Judiciary Act application, I do not consider that the factors relied upon on behalf of the second, third and fourth applicants do constitute special circumstances. Given the nature of the challenge which the first applicant brought to the validity of the second notice issued by the respondent, it was always in prospect that in any event the first applicant's success on that point would render any application by the second, third and fourth applicants otiose in that their visa qualification would follow that of the first applicant. I do not consider there were important questions of public law involved in the application of s 485(1) of the Migration Act - rather, it was a case of the section being applied in its terms. I therefore accept that the second, third and fourth applicants should be ordered to pay the respondent's costs of the Judiciary Act application. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.