SZISM v Minister for Immigration and Citizenship

THE COURT 1 The appellant and the first respondent have filed submissions on costs, as provided for by [32] of our reasons dated 3 May 2007. 2 The appellant seeks an order that the first respondent pay 80% of the appellant's costs of the application to set aside the orders of the Court pronounced by Nicholson J. This order is sought because the appellant won the substantive legal issue which was before the Court. Eighty percent is a conservative assessment of the time and cost involved in the primary legal issue set against all the issues in the application. Counsel for the appellant emphasised the importance of the substantive question and called in aid the recent decision of the High Court in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 and in particular [77] and [78] thereof. 3 The first respondent accepted that an order other than one in his favour, reflecting his success on the motion, was appropriate. The first respondent submitted that the appropriate course be that there be no order as to costs. This would, it was submitted, reflect a mutuality or equality of entitlement to costs. 4 A powerful consideration put forward by the first respondent is that the appellant brought the motion in the face of the indication given by Nicholson J as to prospects. The appellant's argument on the error in the judgment at first instance was based substantially on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 and was, for the reasons we gave, lacking foundation. 5 The argument as to power was a very important one, both for the parties and for the administration of justice generally, and particularly in migration cases. The Court was assisted by careful and lucid arguments on both sides. Considerable preparation was required for that argument. 6 In all the circumstances we think that there should be an order reflecting the success of the appellant upon the important issue of the construction of s 25 of the Federal Court of Australia Act 1976 (Cth) but that order should also recognise that the appellant failed, because there was no foundation for any argument of error in the primary judgment. 7 Balancing these considerations, in particular the predominance of the question of construction in terms of preparation and presentation of the appeal, and seeking to avoid any debate about identification of costs in relation to this issue on taxation, we consider that the appropriate order is that the first respondent pay 50% of the appellant's costs of the application to set aside the orders of the Court made on 16 February 2007 and entered on 27 February 2007. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Black CJ, Weinberg and Allsop JJ.