SZQGA v Minister For Immigration & Citizenship

Federal Court of Australia|2012-09-05|Before: Dr J, Mr P, Barker J

Solicitor for the Respondents: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NSD 171 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

JUDGE: BARKER J DATE OF ORDER: 5 SEPTEMBER 2012 WHERE MADE: PERTH

The order made for costs by Raphael FM on 30 August 2011 be set aside and, in lieu thereof, the respondent pay the applicant's costs fixed in the sum of the $6,240. 2. There be no order as to costs in relation to the appellant's application for an extension of time to file a notice of appeal from the judgment of Raphael FM. 3. The first respondent pay the appellant's costs in relation to the merits of the appeal. 4. Otherwise there be no order as to costs on the appeal in relation to the jurisdictional issues raised on the appeal or on the Constitutional issue raised or on the issue of costs subsequent thereto. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NSD 171 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

JUDGE: BARKER J DATE: 5 SEPTEMBER 2012 PLACE: PERTH

costs issues 1 On 30 August 2011, Raphael FM dismissed the appellant's application in the Federal Magistrates Court for review of a recommendation by the second respondent that the appellant not be recognised as a person to whom Australia had protection obligations under the Refugees Convention. His Honour also ordered the appellant to pay the first respondent's costs assessed in the sum of $6,240.00. By application dated 3 February 2012, the appellant applied for an extension of time to file a notice of appeal from Raphael FM's judgment. The application was heard before me on 14 February 2012 and the appellant represented himself. On 14 February 2012, I ordered, inter alia, that: the time for filing a notice of appeal be extended to 14 February 2012; the sole ground of appeal is in terms that reflect the substance of ground 1(e) of the judicial review application in the Federal Magistrates Court below; and costs be reserved. 2 The appeal was listed for hearing on 20 April 2012 and on 17 April 2012 the first respondent filed and served an outline of submissions addressing the sole ground of appeal. 3 On 18 April 2012, the appellant, by pro bono counsel, filed and served an outline of submissions in which he contended that, by virtue of s 494AA of the Migration Act 1958 (Cth) (Migration Act), the Federal Magistrates Court did not have jurisdiction to deal with the appellant's judicial review application (the s 494AA issue). The appellant's outline of submissions also addressed the sole ground of appeal. 4 On 19 April 2012 the first respondent filed and served a supplementary outline of submissions in relation to the s 494AA issue. 5 The appeal was heard on 20 April 2012. During the course of the hearing, a further issue arose as to whether the Federal Magistrates Court had jurisdiction under s 476 of the Migration Act to consider the appellant's application for judicial review (the s 476 issue). 6 On 26 April 2012, the first respondent filed and served submissions in relation to the s 476 issue. The first respondent accepted that the Federal Magistrates Court had jurisdiction under s 476 of the Migration Act to deal with the appellant's application. 7 On 8 May 2012, the appellant filed and served a supplementary outline of submissions in relation s 476 issue. The appellant contended that: there was no "migration decision" which could have engaged the jurisdiction of the Federal Magistrates Court and the appellant's amended application was incompetent and should have been dismissed; and even if there had been a "migration decision" sufficient to engage the jurisdiction of the Court, in the absence of a "matter" within the meaning of s 75 of the Constitution, the application to the Federal Magistrates Court was incompetent and should have been dismissed (the Constitutional issue). 8 Following a further hearing on 8 May 2012, the matter was adjourned on the basis that the parties would submit draft consent orders setting a timetable for the filing of notices under the s 78B of the Judiciary Act 1903 (Cth), and for further submissions and other material. 9 On 16 May 2012, counsel for the appellant advised that he did not propose issuing s 78B notices or pressing the constitutional issue raised in the appellant's supplementary outline of submissions. 10 On 25 May 2012, the first respondent filed and served: submissions in response to the appellant's supplementary outline of submissions addressing the s 476 issue; and a statement of agreed facts. 11 On 1 June 2012, the appellant filed and served submissions in response to the first respondent's submissions in relation to the s 476 issue. 12 On 7 June 2012, I published reasons for judgment in which I found that: the Federal Magistrates Court was possessed of jurisdiction to hear and determine the judicial review application and that the proceeding was not barred by the Migration Act; the appellant had been denied procedural fairness in the course of the review conducted by the second respondent and that the Federal Magistrate erred in law in not so finding. 13 I declared and ordered that: in recommending to the first respondent that the appellant was not a person to whom Australia has protection obligations, the second respondent failed to observe the requirements of procedural fairness; an injunction be granted restraining the first respondent from relying upon the recommendation of the second respondent; and costs be reserved with liberty to apply. 14 The parties have been unable to reach agreement as to costs. The first respondent now submits that the appropriate order as to costs should be: The order for costs made by Raphael FM on 30 August 2012 be set aside and, in lieu thereof, it be ordered that the first respondent pay the appellant's costs fixed in the sum of $6,240.00. There be no order as to costs in relation to the appellant's application for an extension of time to file a notice of appeal from the judgment of Raphael FM. The first respondent pay the appellant's costs in relation to the merits of the appeal. The appellant pay the first respondent's costs in relation to the jurisdictional issues in the appeal and the issue of costs.

first respondent's submissions 15 The first respondent notes that the Federal Court has jurisdiction to award costs pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Although the Court has a broad discretion to award costs, that discretion must be exercised judicially: Australian Trade Commission v Disktravel [2000] FCA 62 at [3]. 16 Subsections 43(2) and (3) of that Act provide: (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge. (3) Without limiting the discretion of the Court or a Judge in relation to costs, the Court or Judge may do any of the following: (a) make an award of costs at any stage in a proceeding, whether before, during or after any hearing or trial; (b) make different awards of costs in relation to different parts of the proceeding; (c) order the parties to bear costs in specified proportions; (d) award a party costs in a specified sum; (e) award costs in favour of or against a party whether or not the party is successful in the proceeding; (f) order a party's lawyer to bear costs personally; (g) order that costs awarded against a party are to be assessed on an indemnity basis or otherwise. 17 The first respondent says that s 43(3)(b), (c) and (e) are particularly relevant to the orders sought. It says that often a successful party may be unsuccessful in respect of certain issues raised in the course of the proceedings. In Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748, Toohey J considered a claim for costs in a proceeding where the successful applicant had failed on more issues than he had succeeded. At 48,136 Toohey J stated the applicable principles as follows: Ordinarily, costs follow the event and a successful litigant receives its costs in the absence of special circumstances justifying some other order: Ritter v Godfrey (1920) 2 KB 47. Where a litigant has succeeded only upon a portion of its claim, the circumstances may make it reasonable that it bear the expense of litigating that portion upon which it has failed: Forster v Farquhar [1893] 1 QB 564. 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 (Cretazzo) at 12. 18 The first respondent notes Toohey J then addressed the issue of apportionment and referred to the observations in Cretazzo, at 16, wherein Jacobs J expressed "…a note of cautious disapproval" of applications to apportion costs according to whether one party or the other succeeded on various issues of fact or law. Justice Jacobs continued at 16: But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. 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. 19 The first respondent also says it is not uncommon for the Court to apportion costs between parties, depending on their success on different issues: see Gibbett v Forwood Products Pty Ltd (No 2) [2001] FCA 434 at [17]-[18]; Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282; Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) [2007] FCAFC 172; JMVB Enterprises Pty Ltd (formerly A'Van Campers Pty Ltd) v Camoflag Pty Ltd (No 2) [2007] FCAFC 6 and Arrow Pharmaceuticals Limited v Merck & Co Inc [2005] FCA 188. 20 The first respondent draws attention to Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 where Finkelstein and Gordon JJ stated, at [3]-[5]: 3. We think there is force in the argument that the appellant should not benefit from the usual rule that costs follow the event. For many years the traditional rule has been that the winner (once the winner is properly identified) is entitled to recover his costs of the trial. It sometimes happens that there is a departure from the traditional rule and the costs order takes account of the success of the parties on particular issues. But to date the award of costs on an issue by issue basis has only been accepted in limited cases and then only when the circumstances are exceptional. 4. This approach is, if we may be permitted to say so, quite unfair. Its effect is that a winner is entitled to all of his costs even if he raises a plethora of issues on which he is unsuccessful. The unfairness of the traditional rule has been recognised in England where, following Lord Woolf's interim report, Access to Justice (June, 1995) [at para 25.22], the Civil Procedure Rules were modified to require the judge to have regard to the circumstance (if it occurs) that the unsuccessful party has succeeded on some issues: see r 44.3(4)(b). In Western Australia, the Supreme Court Rules provide that costs should follow the event of each pleaded cause of action: see r 66(2)(a). This is narrower than the English approach but certainly more reasonable than adherence to the traditional rule. 5. We do not believe there is any need to wait for a change in the Federal Court Rules to adopt an issue by issue approach here. Costs are in the court's discretion. Fairness should dictate how that discretion is to be exercised. So, if an issue by issue approach will produce a result that is fairer than the traditional rule, it should be applied. It is not suggested that such an approach requires a precise arithmetical apportionment of the costs as between the winner and loser of discrete issues. No doubt the assessment will often be rough and ready. But it will have the virtues of both fairness and reasonableness, which are often lacking in the application of the traditional rule. 21 The first respondent also relies on what Cowdroy J observed in Roadshow Films Pty Ltd v iiNet Limited (No. 4) [2010] FCA 645; (2010) 269 ALR 606 regarding the apportionment of costs where his Honour noted, at [37], that the "current trend seems to favour apportionment in appropriate cases without such cases necessarily being classified as 'exceptional'". 22 The first respondent submits that, in light of the way the appellant ran the appeal, this is an appropriate case for the Court to apportion costs on an issue by issue basis because it says, broadly speaking, there were two separate and distinct issues, namely: the merits of the appeal based on ground 1(e) of the judicial review application in the Federal Magistrates Court (the merits issue); and the jurisdictional issues, which included the s 494AA issue, the s 476 issue and the Constitutional issue (the jurisdictional issues). 23 The first respondent says the jurisdictional issues were substantial and occupied most of the Court's and parties' time in both oral and written submissions. The first respondent uses the example that only 7 of 95 paragraphs of the appellant's written submissions addressed the merits of the appeal. The merits issue and the jurisdictional issues are discrete and severable issues and there is no difficulty in apportioning costs in respect of those issues. 24 The appellant succeeded in relation to the merits of the appeal and the first respondent readily accepts that it should pay the appellant's costs in relation to the merits issue and the appellant's costs at the first instance. 25 The first respondent was wholly successful in resisting the appellant's contentions that the Federal Magistrates Court lacked jurisdiction and it argues that principles of fairness similarly dictate that not only should the first respondent not pay the appellant's costs in relation to the jurisdictional issues, but also that the appellant should pay the first respondent's costs in relation to those issues. 26 The first respondent submits that it is not necessary to establish "special" or "exceptional" circumstances but, if so, such circumstances are present in this case. Those circumstances are not only the first respondent's success in relation to the jurisdictional issues, but also the appellant's position in relation to those issues. 27 The first respondent says that it was not necessary, firstly, for the appellant to raise the jurisdictional issues that he raised. The appellant's arguments in relation to the s 494AA issue were not strong and were rejected and the Constitutional issue which was raised lacked merit and was abandoned by the appellant. The s 476 issue arose out of oral argument in relation to the s 494AA issue and the appellant argued that the Federal Magistrates Court lacked jurisdiction, notwithstanding the first respondent's concession that the Court did have jurisdiction. The first respondent highlights that I rejected those arguments. 28 It is argued that if the appellant considered it necessary or appropriate to raise issues of jurisdiction, the appellant was not obliged to contend, as he did, that the Federal Magistrates Court lacked jurisdiction. It was open to the appellant to either adopt a neutral position or to contend that the Federal Magistrates Court had jurisdiction. 29 In essence, the first respondent says the appellant's role went well beyond that of raising issues of jurisdiction and seeking to assist the Court in its consideration of those issues. The appellant actively and strongly sought to persuade the Court to a particular view, namely that the Federal Magistrates Court lacked jurisdiction, which was rejected. In the circumstances, the first respondent says that it is only fair that not only should the first respondent not pay the appellant's costs in relation to the jurisdictional issues, but that the appellant should pay the first respondent's costs in relation to those issues. The jurisdictional issues were of some importance beyond this particular case should not disentitle the first respondent to an award of costs.

appellant's submissions 30 In his submissions filed 20 July 2012 the appellant also notes that s 43(2) of the FCA Act confers upon the Court a very wide discretion as to costs, unfettered by Div 40 of the Federal Court Rules 2011 (Cth) and that discretion must be exercised judicially in light of all the circumstances of the particular case and refers to Re Sanchez; Ex parte Smits (1994) 49 FCR 326 where Einfeld J found that notwithstanding a finding that there was some merit in both positions, there were no circumstances established which would deny the successful party an order for costs. 31 The appellant says that notwithstanding the breath of the Court's discretion, in the absence of special circumstances, costs follow the event, and he cites Ritter v Godfrey [1920] 2 KB 47 at 52-54, 60 which was approved by Davies J in Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496 at 505 that the principles governing the award of costs are "well understood". The appellant says this principle reflects the general law position that a successful party has a "reasonable expectation" of being awarded costs against the unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67] and [134]. The appellant says that the purpose of the order for costs is to compensate the party in whose favour it is made, not to punish the party against whom the order is made: Oshlack v Richmond River Council (1998) 193 CLR 72 at [67]; Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33 at [34]. 32 The appellant acknowledges that in the exercise of its discretion, the Court may apportion and reduce the costs of a successful party where the party was not successful in all respects of its claim: Inn Leisure Industries Pty Ltd (Provisional liquidator appointed) v D F McCloy Pty Ltd (No 2) (1991) 28 FCR 172. In that case, at 174, French J (as his Honour was then) made a minor apportionment of the costs recoverable by the applicant from the first respondent, drawing from the cases the principle that even where an applicant is not successful on all issues, the usual rule that governs the discretion is that costs will follow the event. But according to the circumstances of the case, and where there are special circumstances, an apportionment may be made of the amount of costs to be paid. In that case, at 174, the costs payable by the unsuccessful party were reduced by one quarter, reflecting causes of action that had failed or been abandoned. 33 The appellant submits that while the Court will apportion costs on an issues basis it is generally reluctant to do so: Cultivaust Pty Ltd v Grain Pool Pty Ltd [2004] FCA 1568. The appellant states that this is because there are difficulties in simply counting the numbers of successes and failures on the part of each party: Spotwire Pty Limited v Visa International Service Association [2004] FCA 1481 at [13]. 34 The appellant says that the appeal succeeded on the sole ground on which the appellant had leave to appeal and he received the relief sought in the notice of appeal. The appeal was entirely successful on the merits and there are no special circumstances that would justify a reduction in the costs that the first respondent should pay. 35 In respect of the s 494AA issue, the appellant says that if the provisions in that section had ousted the jurisdiction of the Federal Magistrates Court then this would have had implications for potentially hundreds of other cases, past and future, in that court and it was of significant importance for the parties to have raised it. Counsel in the present case was also counsel in WAJC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1631 where the Minister successfully argued that the applicant, who was both an off-shore entry person and a transitory person, as was the appellant, was debarred from brining judicial review proceedings in the Federal Magistrates Court. The appellant says that it was both appropriate and necessary that the question be determined by the Court in the present case, and reasonable for the appellant's counsel to seek his consent to the issue being raised, and to raise it in his written submissions. 36 In his written submissions, the appellant states that counsel has a duty to refer the Court to any relevant decision, even where that decision does not support, or even where, if it cannot be distinguished, it is fatal to his case, and this is particularly important where the jurisdiction of the Court is involved. 37 The appellant also notes that it is the first respondent's duty as a model litigant to clarify an issue of jurisdiction. In LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90, the Full Court observed, at [42], that being a model litigant requires the Commonwealth and its agencies, as parties to litigation, to act with complete propriety, fairly and in accordance with the highest professional standards. Their Honours referred notes 2 and 3 to cl 2 of App B to the Legal Services Directions 2005 made under s 55ZF of the Judiciary Act 1903 (Cth) and noted that this obligation may require more than merely acting honestly and in accordance with the law and court rules. In P & C Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales [1973] 2 NSWLR 366 Mahoney J said, at 383: The duty of the executive branch of government is to ascertain the law and obey it. If there is any difficulty in ascertaining what the law is, as applicable to the particular case, it is open to the executive to approach the court, or afford the citizen the opportunity of approaching the court, to clarify the matter. Where the matter is before the court it is the duty of the executive to assist the court to arrive at the proper and just result. 38 The appellant says that once the ouster issue had been drawn to his attention, it was arguably the duty of the first respondent, as a model litigant, to raise the issue with the Court for determination, "rather than to forbear and then seek to penalise [the appellant] in costs for having done so." The raising of that issue by the appellant was not a special circumstance calling for a reduction in the costs he should receive from the first respondent. 39 In respect of the s 476(1) issue the appellant says that there should be no set-off against the appellant's costs in respect of the argument on the jurisdiction of the Federal Magistrate under s 476(1) of the Migration Act. The Court sought the assistance of counsel on the construction of s 476(1) of the Migration Act, and the appellant obliged with both written and oral submissions. In the present case, the jurisdiction of the Federal Magistrate under the section formed no part of the appellant's grounds of appeal, or of his original submissions. The issue arose in the course of hearing by reason of the first respondent's reliance on the discussion of the Full Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26; (2012) 286 ALR 331 (SZQDZ). The appellant submits that there can be no support for the proposition that the party, whose submissions are accepted, should in such circumstances be paid costs by the other party, and either the costs of such submissions should follow the event in the usual way or there should be no order in respect of such costs. 40 The appellant says that the onus is on the first respondent to establish special circumstances requiring departure from the usual procedure by which costs follow the event and there are no such special circumstances obvious in the present case.

CONSIDERATION 41 As noted above, in relation to the history of the proceeding before this Court, I initially granted the appellant an extension of time for filing his notice of appeal but limited the appeal to a single ground concerning natural justice. At that point, the appellant was self-represented, although he had been legally represented in the proceeding below before the Federal Magistrate. 42 However, I also, in granting an extension of the time to appeal on these terms, made an order that provided for a pro bono referral. That referral was responded to by Dr J Cameron, who then appeared thereafter as the pro bono lawyer and counsel representing the appellant. 43 When the matter came on for hearing before me, Dr Cameron, as pro bono counsel endeavoured to raise other issues, on the instructions of his client, concerning the jurisdiction of the Federal Magistrates Court to have dealt with the proceeding at all, having regard to the terms of s 494AA of the Migration Act. 44 Obviously, the Court had not earlier received an indication that such a jurisdictional ground was or might be taken. Obviously it was not an issue raised before the Federal Magistrates Court. It appears in that sense to have been an issue that pro bono counsel considered relevant and was pressed on instructions from his client, appreciating that if successful then the current proceedings would come to an end and presumably the matter would have to be agitated in a different forum. 45 No particular opposition was raised at the time on behalf of the first respondent. The general position was, I consider, that both the Court and the first respondent proceeded on the basis that if there was a demonstrable bar to the proceedings in the Federal Magistrates Court it was better the matter be dealt with on the appeal, rather than the Court allow some impermissible course to be perpetrated. 46 The next thing that happened was that during the hearing of the appeal, in the course of argument, the Court raised a question about the jurisdiction of the Federal Magistrates Court under s 476 of the Migration Act. This raised an issue concerning the application of the relatively recent decision of the Full Federal Court in SZQDZ. The Court provided for the parties to put on further submissions in relation to that question. 47 Following this, counsel for the appellant then took the further step of raising a Constitutional issue when he suggested that when all was said and done, there may not be a "matter" the subject of the proceeding. The Court heard some preliminary debate about that and whether notices should be filed under s 78B of the Judicial Act 1903 (Cth). It appeared that they should be but relatively soon after the appellant abandoned that issue. 48 In my view, while some question may be raised about the latitude assumed by counsel for the appellant and so inferentially by the appellant as to what issues could and should be raised on the appeal, I am not minded to make an order that the appellant pay the first respondent's costs in respect of the jurisdictional and other issues raised subsequent to the appointment of pro bono counsel. Rather, I consider that there should be no order as to costs in respect of those matters. Certainly, this is a case where the appellant, having lost on the jurisdictional questions and to some limited extent wasted the Court's and the first respondent's time in relation to the purported Constitutional issue, little time was spent on the Constitutional issue and certainly insufficient, in my view, to require an order that the appellant pay costs in respect of that matter. It was initially raised relatively tentatively and soon enough went away. 49 So far as the s 476 question was concerned, that was raised by the Court. It might be said that counsel for the appellant seized on the issue and argued for a particular consequence about it, but in my view that was not impermissible and in fact it helped to have one party advocating a view and the other party, the first respondent, contradicting that view, and that was of some assistance to the Court. In the event, the Court found that it was bound to apply the decision of the Full Federal Court as properly understood. For those reasons, I do not think that the appellant should in effect be penalised by a costs order against him in respect of argument on that issue which was, in the end, an unsuccessful issue from the appellant's point of view. 50 The remaining two issues concerned s 494AA of the Migration Act, where the appellant, by reference to two provisions, suggested there was a bar to the makings of the proceedings in the Federal Magistrates Court. As noted above, if there were properly to be found a bar, then those proceedings should not have been maintained in the Federal Magistrates Court. In the event, I was not satisfied that the arguments put could be successful. I do not think it is appropriate to be critical of pro bono counsel, in all of the circumstances, in relation to this point. As noted above, the first respondent and the Court proceeded to deal with these issues when they were raised. I consider it was recognised all round, including by the first respondent, that these could be important issues, even though the first respondent rejected the substance of the submissions put. 51 In my view, in all of the circumstances, whilst real time, both in the oral hearing and in the written submissions was spent dealing with jurisdictional issues that in the end were not successful, from the appellant's point of view, this is not a case which, in my judgment, calls for a costs order to be made against the appellant. 52 To some extent in exercising my discretion to award or not to award costs judicially, as I must, I do take into account the fact that this was initially an appeal by a self represented party in relation to a migration decision in which the assistance of pro bono counsel was considered to be likely of assistance. That is a circumstance which I think may reasonably ameliorate what might happen in another case, by way of costs orders, which are different in nature from this proceeding. That is not to say that in every case where an appellant in a migration matter, or a party in any other proceeding, who is represented by pro bono counsel, pursuant to the Rules of the Court, should automatically or otherwise receive some special consideration. But, taking into account all the circumstances of this particular case, I am not inclined to make an award of costs against the appellant in respect of the matters on which he was unsuccessful. 53 So far as the authorities are concerned there is no doubt the Court has ample power to make costs orders that, if it is appropriate, recognise that a party who was successful overall on a matter but was unsuccessful on some particular, discrete and substantial issue along the way, might have their entitlement to costs reduced or a costs order against them in respect of the lost issue. Some of the authorities disclose that may be an appropriate approach, for example, in relation to litigation for patent infringement where there may be a number of discrete issues. The authorities show that there may well be other such cases. The Court certainly should bear in mind that parties should be discouraged from raising discrete issues which have no real chance of success, thereby causing the proceedings to be larger and longer than they ought be. But taking into account all of those factors, as I have indicated, I am satisfied that in this case the way the jurisdictional issues were raised and developed and dealt with make it reasonable that, while the appellant should have his costs on the appeal in relation to the sole ground of appeal for which leave to extend the time for making the appeal was granted, and should not be entitled to recover costs in respect of the lost jurisdictional issues, it is not appropriate that there should be a positive order against the appellant to pay the costs of the first respondent in respect of the lost jurisdictional issues or the Constitutional issue that was not in the end pursued.

ORDERS 54 In these circumstances, the appropriate orders are (having regard to the other terms of the proposed order noted on behalf of the first respondent): 1. The order made for costs by Raphael FM on 30 August 2011 be set aside and, in lieu thereof, the respondent pay the applicant's costs fixed in the sum of the $6,240. 2. There be no order as to costs in relation to the appellant's application for an extension of time to file a notice of appeal from the judgment of Raphael FM. 3. The first respondent pay the appellant's costs in relation to the merits of the appeal. 4. Otherwise there be no order as to costs on the appeal in relation to the jurisdictional issues raised on the appeal or on the Constitutional issue raised or on the issue of costs subsequent thereto. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Judicial Act 1903(Cth)

Judiciary Act 1903(Cth)s 55ZF, s

Migration Act 1958(Cth)s 476, s

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