Chu Sing Wun v The Minister for Immigration & Ethnic Affairs

[1997] FCA 153

CATCHWORDS

PROCEDURE - costs - whether apportionment appropriate

Borthwick v Evening Post (1888) 37 ChD 449
Cretazzo v Lombardi (1975) 13 SASR 4
Cummings v Lewis (1993) 113 ALR 285
Jamal v Secretary, Department of Health (1988) 14 NSWLR 252
Jones v Merionethshire Permanent Benefit Building Society [1892] 1 Ch 173
Scherer v Counting Instruments Ltd [1986] 1 WLR 615

CHU SING WUN v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
NO WAG 115 OF 1994

R D NICHOLSON J
PERTH
19 MARCH 1997

IN THE FEDERAL COURT OF AUSTRALIA                 )

WESTERN AUSTRALIA DISTRICT REGISTRY            )

GENERAL DIVISION  )  NO WAG 115 OF 1994

B E T W E E N:  CHU SING WUN

Applicant

and

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:    R D NICHOLSON J

DATE OF ORDER:  19 MARCH 1997

WHERE MADE:  PERTH

THE COURT ORDERS THAT:

The respondents pay 75 per cent of the applicant's costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA                 )

WESTERN AUSTRALIA DISTRICT REGISTRY            )

GENERAL DIVISION  )  NO WAG 115 OF 1994

B E T W E E N  CHU SING WUN

Applicant

and

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM:R D NICHOLSON J

DATE:19 MARCH 1997

PLACE:PERTH

REASONS FOR JUDGMENT

On 24 February 1997 the Court ordered that the respondent's decision made by his delegate on 12 September 1994 be set aside and the matter the subject of the decision remitted to the respondent for determination according to law.  The issue of costs was reserved for written submissions.

For the respondent it is contended each party should bear its own costs or, in the alternative, the respondent should only pay 50 per cent of the applicant's costs.  This submission is founded on the contention that the applicant was only successful on three of forty three grounds of review so that the respondent was put to the task of responding to a number of issues on which the applicant was not successful.  Additionally, it is contended that a significant amount of time was spent at trial in relation to issues of access to confidential material on which the applicant was ultimately unsuccessful.  Furthermore, issues were activated which had been litigated before Beaumont J and which were found by the Court in this proceeding not to be open to further argument.

For the applicant it is submitted that in the absence of special circumstances the general rule should be followed and costs should follow the event.  It is said that there was nothing in the conduct of the applicant's case which would justify a departure from the general rule.  Additionally, it is responded that it was not necessary for many of the grounds raised by the applicant to be dealt with in the reasons because the applicant succeeded on certain of those grounds.  For the applicant reference is made to the effect of the judgment and to the applicant's success in opposing objections to evidence.

In Cummings v Lewis (1993) 113 ALR 285 at 327 Cooper J, with whom Sheppard and Neaves JJ agreed on the issue of costs, said:

"The nature of the discretion vested in a trial judge as to the award of costs and the principles which guide the exercise of the discretion are set out by Toohey J in Hughes v Western Australian Cricket Assn (Inc) at 48,136:

Section 43(2) of the Federal Court of Australia Act 1976 vests the award of costs "in the discretion of the Court or Judge". The Federal Court Rules do not purport to qualify that discretion.  The only rule to which reference is necessary is O62, r15 whereby, when costs are reserved, those costs follow the event "unless the Court or a Judge otherwise orders".

The discretion must of course be exercised judicially.  There are decisions, both of Australian and English courts, that throw light on the way in which the discretion is to be exercised.  I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect.

1.Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order: Ritter v Godfrey [1920] 2 KB 47.

2.Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed: Foster v Farquhar [1893] 1 QB 564.

3.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 at 12.

This statement of principle was approved by the Full Court in Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 17 FCR 211 at 222; 76 ALR 407 at 418.

It is within the discretion of a trial judge to award only a proportion of a successful party's costs if the conduct of that party in the trial was such as to unreasonably prolong the proceedings: Latoudis v Casey (1990) 170 CLR 534 at 544; 97 ALR 45; Re Elgindata Ltd (No 2) [1992] 1 WLR 1207 at 1214, 1217."

The character of special circumstances which will disentitle a successful party from an award of costs has been the subject of examination in a number of English and Australian authorities.
In more recent English authority - Scherer v Counting Instruments Ltd [1986] 1 WLR 615 at 621 - Buckley LJ, in summarising the principles governing the making of cost orders, included the principle that:

"the grounds must be connected with the case.  This may extend to any matter relating to the litigation and the parties conduct in it, and also to the circumstances leading to the litigation, but no further."

In Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 at 271-2, Mahoney JA recognised that in respect of costs on an appeal, conduct in relation to the matter under appeal may be discreditable to an extent warranting deprivation of costs: see Jones v Merionethshire Permanent Benefit Building Society [1892] 1 Ch 173 at 187-8 and Borthwick v Evening Post (1888) 37 ChD 449 at 465.

However in Cretazzo v Lombardi (1975) 13 SASR 4 at 16 where Jacobs J said:

"... I would wish to sound a note of cautious disapproval of applications, which are being made with increasing frequency, to apportion costs according only to the success or failure of one party or the other on the various issues of fact or law, which arise in the course of a trial.

...

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.  There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike.  I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues."

The essential question therefore is whether there was anything in the manner in which the applicant's conducted the case which would justify some other order than that costs should follow the event.  In my opinion, so far as the applicant's case was based upon an attempt to reargue the matters adjudicated by Beaumont J, it engaged in conduct which unnecessarily prolonged and complicated the proceeding.  To an appropriate extent it is disentitled to costs because of that circumstance.

I do not accept the respondent's submission that the relevant degree is 50 per cent.  In my view an appropriate percentage would be 25 per cent. 

Accordingly the order will be that the respondent pay 75 per cent of the applicant's costs of the application.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date:19 March 1997

APPEARANCES

Counsel for the Applicant:  Mr L W Roberts-Smith QC and

Mr A J Goldfinch

Solicitors for the Applicant:                  Finlay Phillips

Counsel for the Respondent:                Mr S Owen‑Conway QC and

Mr P Macliver

Solicitors for the Respondent:    Australian Government

Solicitors

Date of Hearing:  8 & 9 July 1996

Date of Judgment:  19 March 1997