Oshlack v Richmond River Council

THE COURT On 5 August 1998 this Court delivered judgment allowing this appeal. At that time the parties were given leave to file written submissions on costs. Those written submissions have now been received and considered. These are the reasons for the decision of the Court on the issue of costs. The appellant contends that there should be an order awarding him his costs both of the appeal and of the hearing before the primary judge. The appellant relies on the general rule, which has recently been affirmed by the High Court, that costs follow the event (Oshlack v Richmond River Council (1998) 152 ALR 83; South-West Forest Defence Foundation Inc v Executive Director of Department of Conservation and Land Management (No. 2) (1998) 154 ALR 411; Attorney-General (Cth) v Tse Chu-Fai (No. 2) (1998) 154 ALR 414). We agree that this is a case in which, in the exercise of the Court's discretion, it is appropriate that an order be made that the respondent pay the appellant's costs of the appeal and of the hearing below. No reason has been shown for a departure from the general rule. The respondent has made an application pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) ("the Act") for a costs certificate in respect of the appeal. Section 6(1) of the Act provides as follows: "6(1) Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of the respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal". The appeal to this Court was a "Federal appeal" within the meaning of the Act (s 3(1)). It was an appeal which succeeded on a question of law. No matters of fact required resolution by this Court. The principal issue for the determination was whether the respondent had a well-founded fear of being persecuted "for reasons of … membership of a particular social group" within the meaning of Art 1A(2) of the Refugees Convention. The High Court considered the meaning of the phrase "for reasons of … membership of a particular social group" in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225. However, as the judgment of this Court pointed out, the members of the High Court who constituted the majority in Applicant A's case did not adopt an entirely common approach to the issue of what constitutes a particular social group for the purposes of the Refugees Convention. The consideration of Applicant A's case by this Court should prove to be of value to the appellant, and generally, so far as applications for protection visas are concerned. It is accepted that the respondent is impecunious, and was able to obtain legal representation only by reason of a grant of legal aid under the Legal Aid Commission Act 1979 (NSW). Any debt incurred by the respondent to the Commonwealth may preclude the grant to her of a visa other than a protection visa (Migration Regulations 1994, Schedule 4, public interest criteria 4004). In the circumstances, although the appellant has sought an order for costs in his favour, he may consider it appropriate to determine that such orders should not be enforced. This is a matter within the discretion of the appellant. For our part, we consider it appropriate to grant to the respondent a costs certificate in respect of the appeal. This certificate will only assume significance should the appellant determine to enforce the order which we make in his favour.