Minister for Immigration and Multicultural Affairs v "X"

REASONS FOR JUDGMENT LEE AND MERKEL JJ: 2 On 6 July 2001 the Full Court allowed the appeals by the appellant ("the Minister") in each of the above matters. When judgment was delivered the parties requested an opportunity to file submissions as to costs. 3 The Minister, having succeeded in his appeal, contended that costs ought to follow the event. The respondents opposed those orders claiming that they should get their costs of the proceeding or alternatively the parties should bear their own costs. 4 The event in the present case is the Minister's success in obtaining orders setting aside the orders made by the primary judge and also obtaining orders dismissing the respondents' applications for review of decisions of the Refugee Review Tribunal ("the Tribunal"), which had affirmed decisions of a delegate of the Minister refusing the respondents' applications for a protection visa. 5 The usual order is that costs follow the event. In some cases the Court will depart from the usual order in relation to costs when the justice of the case requires, because of exceptional, special or unusual circumstances: see Oshlack v Richmond River Council (1998) 193 CLR 72 at 126; Re Wilcox: Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 734 and De Silva v Minister for Immigration and Multicultural Affairs [1998] FCA 311 at 3. See also Ruddock v Vadarlis [2001] FCA 1865 at [28]-[29]. 6 There are some special features about the present case. First, when the respondents applied for protection visas on the ground that they were refugees, and to the Court for the review of the decisions of the Tribunal, they were minors. After the respondents commenced their proceedings in the Court the Minister applied to the Court for the dismissal of the proceedings on the ground that the applicants were minors and had not sued by a tutor. In the course of the hearing of the application for the dismissal of the proceedings the Minister undertook that, even if he were successful in contesting the proceedings, he would not seek costs against the tutor should the tutor agree to act for the two minors in their proceedings. The primary judge dismissed the motion (see (1999) 164 ALR 583) and both matters proceeded to trial with the respondents as applicants. When judgment was delivered in the respondents' favour the respondents were no longer minors. Although the Minister's undertaking not to seek costs did not apply in the event that a tutor was not appointed, it may be anomalous that he would not seek costs against a tutor who duly and properly conducted the proceedings but is seeking costs when the respondents duly and properly conducted the proceedings without a tutor, using the same solicitors and counsel that we would have expected a tutor to engage. 7 The second special feature is that the main ground upon which the respondents succeeded in their application to the primary judge was no longer available to them on the appeal as a result of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 ("Yusuf"), which was handed down after the hearing of the appeal but prior to the delivery of judgment by the Full Court. As a consequence, the main issue argued by both parties on the appeal was not adjudicated upon by the Full Court. When regard is had to the state of the authorities in this Court prior to the decision in Yusuf, as a matter of practical reality, the respondents had no real choice but to contest the Minister's appeals. 8 The third special feature is that, notwithstanding the above matters, the Full Court found that the Tribunal erred in law but determined that the error of law did not contribute to the decisions, which the Full Court concluded would have been the same regardless of the error. 9 Although each of the features to which we have referred, standing alone, may not warrant a departure from the usual order as to costs, when considered cumulatively they warrant such a departure. In all the circumstances, we regard the interests of justice as appropriately served in the present case by the parties bearing their own costs of the proceedings below and of the appeal.