Minister for Immigration & Multicultural & Indigenous Affairs v VBAO of 2002

2 Pursuant to order 4 of the Court's orders in the substantive judgment, the legal representatives of the parties filed submissions on the question of costs. 3 Counsel for the respondent's primary position is that the costs order below in favour of the respondent should be preserved and that there be no costs of the appeal. In the alternative counsel sought a certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). 4 Order 2 of the orders made on 19 November 2002 set aside the costs order made below. I see no basis for its revival. Further, in my view, there should be no order as to the costs of the appeal. 5 I accept the submission of counsel for the respondent that the issue below and on appeal involved an important and novel question of the construction of s 91R of the Migration Act 1958 (Cth). 6 It follows that I consider that there are special and extraordinary circumstances applicable in this matter such that costs should not follow the event. I reject the submission of the solicitors for the appellant that costs should follow the event. As Black CJ and French J said in Ruddock v Vadarlis [2001] FCA 1865, (2001) 115 FCR 229 at [17]: "Where an appeal raises a novel question of much general importance and some difficulty the appeal court may decline to order costs against the unsuccessful appellant". The current matter is an appropriate occasion to so decline. 7 Accordingly the Court will order:

1. There be no order for costs in respect of the judgment of the Federal Magistrates Court of 14 May 2004.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Counsel for the Respondent: Mr R Niall (pro bono)

Completion of Written Submissions: 26 November 2004

Date of Judgment: 3 December 2004