COSTS
4 The first respondent (the Minister) made the point that Mr Weng was represented on the application for review at first instance as well as on appeal. Grounds 1-4, which were advanced in this appeal, were also advanced at first instance and all failed. That being so, there should be no basis on which Mr Weng should be permitted to disturb the costs order in the Federal Magistrates Court given that all the grounds he chose to run, on advice, were unsuccessful.
5 The hearing of the appeal was originally listed for 18 November 2010 but was vacated on the application of Mr Weng. In that hearing, orders were made for Mr Weng to pay the Minister's costs thrown away including costs of the directions hearing. At present, the Minister is entitled to the benefit of that costs order.
6 On the appeal itself, as indicated, only one ground of the five succeeded. This ground was raised with the Minister for the first time on 24 February 2011, less than a week prior to the hearing, when written submissions in support of the appeal were served along with a proposed amended notice of appeal. The Minister submits that until that point when the new ground was added, the appeal was doomed to fail given the outcome on the existing grounds of appeal 1-4.
7 Given the belatedness with which ground 5 was raised and the fact that Mr Weng ultimately succeeded on only one of the five grounds of appeal argued, the Minister submits that the Court would be entirely justified in ordering that there be no order as to costs of the appeal, leaving in place the earlier costs order in the Minister's favour and the original costs order below.
8 Nevertheless, the Minister accepts that on the basis that Mr Weng has succeeded on the new ground not argued below, an appropriate outcome on the issue of costs would be for the Court to:
set aside the costs order made below;
order that each party pay his own costs of the proceeding below; and
vacate the earlier costs order made in the Minister's favour on 18 November 2010.
9 On the basis that those two orders would allow Mr Weng costs benefits (costs that he would not otherwise be entitled to) and that those benefits would adequately compensate him for 'such limited success' as he has had on appeal, it is argued that there should otherwise be no order as to costs of the appeal. This, it is said, would have the additional benefit of avoiding the need for taxation of costs.
10 Alternatively, the Minister argues that the original costs order below should stand (being in favour of the Minister), the costs order of 18 November 2010 in favour of the Minister should stand and any order made in favour of Mr Weng in terms of the costs of the appeal should be for no more than one-third of his costs of the appeal. The amount would reflect the 'limited nature of the success' and the relation between the work done on the appeal and the sole ground on which he succeeded, given the belatedness with which the ground was raised.
11 Mr Weng, however, says that the usual practice should apply. Costs should follow the event. The Court should be reluctant to engage the approach of apportionment for reasons explained by Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 (at 12) which has been followed on a number of occasions by this Court (see, for example, Cummings v Lewis (1993) 41 FCR 559 (at 602-603) and Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 (at [53])).