Daher, Toufic v Minister for Immigration & Ethnic Affairs

[1996] FCA 1060

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

VG 102 of 1996

On appeal from the General Division of the Administrative Appeals Tribunal constituted by Deputy President G.L. McDonald

B E T W E E N :

TOUFIC DAHER
Applicant

AND

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent

MINUTES OF ORDERS

BEFORE:     North J
PLACE:       Melbourne
DATE:          25 November 1996

THE COURT ORDERS THAT:

The order made by North J on 21 November 1996 in paragraph 2 be vacated, and in its place there be an order that the applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

VG 103 of 1996

B E T W E E N :

TOUFIC DAHER
Applicant

AND

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent

MINUTES OF ORDERS

BEFORE:     North J
PLACE:       Melbourne
DATE:          25 November 1996

THE COURT ORDERS THAT:

The order made by North J on 21 November 1996 in paragraph 2 be vacated, and in its place there be an order that the applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

VG 102 of 1996

On appeal from the General Division of the Administrative Appeals Tribunal constituted by Deputy President G.L. McDonald

B E T W E E N :

TOUFIC DAHER
Applicant

AND

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent

- AND -

VG 103 of 1996

B E T W E E N :

TOUFIC DAHER
Applicant

AND

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

BEFORE:     North J
PLACE:       Melbourne
DATE:          25 November 1996

EX TEMPORE REASONS FOR JUDGMENT

I heard these matters on 7 October 1996. The first matter is an appeal from the Administrative Appeals Tribunal (AAT) under s.44 of the Administrative Appeals Tribunal Act 1975, and the second, an application under Part 8 of the Migration Act 1958 to review that same decision of the AAT. Argument on the question of costs was deferred to a later date. I handed down the substantive judgment in these matters on 21 November 1996 dismissing both the appeal and the application for review: Daher v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, North J, 21 November 1996, J.No. 1011/96). I also ordered, in both matters, that subject to any further order, the applicant pay the respondent’s costs by 28 November 1996. I indicated to the parties on 21 November 1996 that I would be willing to hear an application for costs on behalf of the applicant, and I do so today.

It is recognised by both counsel that the Court has an unfettered discretion in relation to the question of costs. My starting point in the exercise of the discretion is that the costs should follow the event. That basic guideline is modified in cases which can properly be described as test cases raising questions of general public importance. The assessment of cases which fall within that category is a question of degree.

That modification should be given full operation. Although I have not had the opportunity to consider the arguments in detail, it is likely that I would take a slightly different view, or place a slightly different emphasis than that placed on the matter by Tadgell J in the case of the
Mayor, Councillors and Citizens of the City of South Melbourne v Hallam [1995] 1 VR 247.

Nonetheless, each case depends on its facts and, in this case, the public interest element is so small and the private interest element of the litigation so dominating, that it is not a case which should attract a deviation from the general guiding principle that costs follow the event. In the circumstances, I intend to order that the applicant pay the costs of the respondent.

The order I now make is that the order made by me on 21 November 1996 in paragraph 2 be vacated and in its place there be an order that the applicant pay the respondent's costs and that will be an order in each of the matters, both VG 102 and VG 103.

I certify that this and the preceding
two (2) pages are a true copy of the reasons
for judgment of his Honour Justice North.

Associate:
Dated:           2 December 1996

APPEARANCES

Counsel appearing for the applicant:        P. Hanks
Solicitors for the applicant:  Erskine Rodan & Associates

Counsel appearing for the respondent:      A. Cavanough
Solicitors for the respondent:                  Australian Government Solicitor

Date of hearing:  25 November 1996
Date of judgment:  25 November 1996