Gaillard, Gitsadawan v Department of Immigration & Ethnic Affairs

[1983] FCA 284

IN THE FEDERAL COURT OF AUSTRALIA )

1

AUSTWIAN CAPITAL TEERITORY	)
) No. ACT G16 of 1983
DISTRICT REGISTRY	1
)
GENERAL DIVISION	1

IN THE MATTER of an appeal from a

single judge of the Federal Court

of Australia in which the Minister

for Immigration and Ethnic Affairs

was the appellant and Gitsadawan

Gaillard was the respondent

AND IN THE MATTER of an applicarion

bv Gitsadawan Gaillard under the

Federal Proceedings (Costs) Act	1981
O R D E R

JUDGE MAKING ORDER: Neaves J

DATE OF ORDER: 18 October 1983

WHERE MADE: Canberra

THE COURT GRANTS to the applicant, Gitsadawan Gaillard,

a certificate in terms of section 6 of the Federal Proceed-

I

ings (Costs) Act	1981 that, i n the opinion of the Court,	I
I

it would be appropriate for the Attorney-General to authorise

a payment under the Act to the applicant in respect of -

(a) the costs incurred by the applicant in relacion

to the appeal to the F u l l Court of this Court in

matter numbered ACT G16 of 1983 in which the

1.

Minister for Immigration and Ethnic Affairs was

the appel lan t and the appl icant was the respondent

and i n which judgment	vas given	on 29 August	1983;
and

(b) the cos ts incur red by the appe l l an t , the Minis te r

for Immigration and Ethnic Affairs, in r e l a t i o n t o

that appeal that have been, o r a r e r e q u i r e d t o be,

paid by the app l i can t t o t he s a id appe l l an t i n

pursuance of the order of this Court made in the

said appeal on 29 August 1983.

2.

I N THE FEDERAL COURT OF AUSTRALIA )

)

AUSTRALIAN CAPITAL TERRITORY	1
) No. ACT G16 of 1983
DISTRICT REGISTRY	)
)

GENERAL D I V I S I O N )

I N THE MATTER of an appeal from a

single iudge of the Federal Court

of xust ;a l ia in which the Minis ter

for Immigration and Ethnic Affairs was the appel lan t and Gitsadawan

Gai l la rd was the respondent

AND I N THE MATTER of an appl icat ion

by Gitsadawan Gaillard under the

- Federal Proceedings (Costs) A c t 1981

CORAM: Neaves J.

DATE : Ik October 1983

REASONS FOR JUDGMENT

This i s an application under section 6 of the

Federal Proceedings (Costs) Act 1981 on behalf of Gitsadawan

Gai l la rd (here inaf te r ca l led " the appl icant" ) for a cos t s

c e r t i f i c a t e i n r e s p e c t o f an appeal to a Ful l Cour t o f th i s

Court from a decis ion of the Court const i tuted by a s ing le

judge .

1.

The h i s to ry of the mat te r i s that on 10 January

1983 the Minister for Immigration and E thn ic Af fa i r s , i n

pursuance of sub-section 7 ( 1 ) of the Migration Act 1958,

purported to cancel the temporary entry permit granted to the

appl icant on 30 October 1980 and, on the basis that the

appl icant was a prohibited immigrant, ordered pursuant to

sect ion 18 of that Act , that the appl icant be deported f rom

Aus t r a l i a .

The appl icant appl ied under sect ion 5 of the

Adminis t ra t ive Decis ions (Judicial Review) A c t 1977 t o

review those decisions of the Minister. On 31 March 1983

the Cour t , cons t i tu ted by a s ing le judge , o rdered tha t the

dec is ions	be	se	t	as ide .	From	tha t	o	rder	the	Minis te r
appealed.

On 29 August 1983 a F u l l Coilrt of t h i s Court

unanimously allowed the appeal with costs, set aside the

order of 31 March 1983 and in l i eu t he reo f o rde red t ha t

the appl icat ion under the Adminis t ra t ive Decis ions (Judicial

Review) Act 1977 be dismissed with costs .

Counsel for the appl icant informed m e t h a t t h e

appl icant proposed to apply to the High Court for special

leave to	appeal	f	rom the decis	ion of	the Ful	l	Court	of	this
Court

,2.

Sect ion 6 of the Federal Proceedings (Costs)

_. Act 1981 provides in sub-sect ion (1) t h a t , s u b j e c t t o t h e

Act, whc.re a Federal appeal succeeds on a quest ion of l a w ,

the court that heard the appeal may, on the app l i ca t ion of

a respondent to the appeal , grant to the respondent a c o s t s

c e r t i f i c a t e i n respect of the appeal. The expression

"Federal appeal" i s defined i n sub-section 3 ( 2 ) . It inc ludes

an appeal to the Full Court of the Federal Court from a

judgment of the Federal Court constituted by a s ingle judge.

By v i r tue o f s ec t ion 12 of the Act , the j u r i s -

d ic t ion confer red on a court by the Ac t t o g ran t cos t s

c e r t i f i c a t e s may be exercised by a member of that Court

s i t t i n g i n Chambers.

The c e r t i f i c a t e t h a t may be granted under sub-

sec t ion 6(1) by a cour t t o a respondent t o a Fede ra l appeal

i s a c e r t i f i c a t e s t a t i n g t h a t , i n the op in ion of the cour t ,

i t would be appropriate for the Attorney-General to authorise

a payment under the Act to the respondent i n respect of -

(a) t he cos t s i ncu r red by the respondent in

r e l a t ion t o t he appea l ; and

(b ) any cos ts incur red by an appel lant i n

relat ion to the appeal that have been,

o r a r e r equ i r ed t o be, paid by t h e res-

pondent to the appel lan t in pursuance o f

an order of t he cour t , no t be ing cos t s t o

which a cos t s ce r t i f i ca t e g ran ted unde r

3 .

section 7 relates.

Section 7 has no relevant application in the present case.

There is no doubt that the appeal to the Full

Court of this Court succeeded on a question of law as that

expression is used in sub-section 6(1) of the Act. The Court

is not precluded from granting a certificate by section 14

nor by sub-section 21(1).

The statute does not lay down any criteria for

the exercise of the discretion which section 6 confers on

the Court. The discretion is, therefore, unfettered except

in so far as limitations upon it can be said to arise from

the general scope and purpose of the legislation to be

ascertained upon a consideration of its language.

The question of law on which the appeal to the

Full Court of this Court succeeded was whether the Minister, in making his decisions, was bound to observe the principles

of natural justice. The Full Court held that he was not so

bound, differing from the view formed by the learned primary

judge. The circumstance that it was the applicant who .

asserted before the learned primary judge and before the

Full Court that the Minister was SO bound is not, of itself,

a circumstance warranting the refusal of a certificate.

The applicant was granted legal aid in respect of

the conduct of the appeal to the Full Court. On one view

4 .

this circunstance requires that any certificate granted

under sub-section 6 ( 1 ) of the Act be limited to the costs

incurred by the Minister in relation to the appeal that

have been, or are required to be, paid by the applicant

in pursuance of the order of the Full Court. On the other

hand the view can be taken that the case is an appropriate

one for the grant of a certificate in the terms set out in

paragraphs (a) and (b) of sub-section 6 ( 3 ) , it being a

matter for the Attorney-General, in ascertaining what amount by

way of costs the applicant has incurred in relation to the

appeal, to take into account that the applicant's own costs

of that appeal are payable by way of legal aid. On balance

I think the latter is the preferable view.

I , therefore, certify in terms of section 6 of

the Act that, in the opinion of the Court, it would be

appropriate for the Attorney-Generel to authorise a payment

under the Act to the applicant in respect of -

(a) the costs incurred by the applicant in relation

to the appeal to the Full Court of this Court

in which judgment was given on 29 August 1983;

and c

(b)

the costs incurred by the appellant, the Minister that appeal that have been, or are required to be,

paid by the applicant to the said appellant in

pursuance of the order of this Court made on

2 9 August 1983. J

5.

?

I c e r t i f y t h a t t h e f i v e (5 )

preceding pages are a t r u e

copy of the Reasons for

Judgment of the Honourable

M r . J u s t i c e Neaves.

4 c? ‘U

Associate

Dated: iF; - r o .n

6.