Kumar, B.W. v Mitchell, P - [1991] FCA 747

WEMENT No. ?t./..9?,.-

C A T C H W O R D S

C0818 - application to magistrate for detention of alleged
illegal entrant - magistrate in error - competing
considerations between citizen seeking redress for error
affecting that person's liberty and organ of government
initiating proceedings - whether citizen should be left
without order for costs.

v K U W v. PETER MITCHELL & ANOR.
NO. 4683 of 1991.

29 OCTOBER 1991.
SPENDER J .
BRISBANE

THE F - COURT OF AUSTRALIA )

1 NO. qda3 oe 1991

- 1
BETWEEN: BUNELA WATI K U W
Applicant

AND: PETER MITCHfg&

First Respondent

AND: VERN T

Second Respondent

JUDGBMfING ORDER: Spender J.

-8 29 October 1991
IlmkLwm: Brisbane
The eecond respondent pay the applicant's costs of and incidental to the application, including reserved coats, to be taxed if not agreed.

IIQ3CEI Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

URT OF AUSTRRLIA )

DISTRICT RE- ) NO. Q683 of 1991

v 1

BETWEEN I WATI K m
Applicant

AND:

First Respondent

AND: W T E R FOR -ION. LOCAL GOVERNMENT

- Second Respondent

sx2uu: Spender J.
mbsx: Brisbane

Rm6: 29 October 1991
ONS FOR JUDG-
I am concerned with the question of costs in respect

of proceedings brought by Mrs Bunela Wati Kumar seeking review
of a decision by Mr Peter Mitchell, stipendiary magistrate, in
proceedings before him between the second respondent and the
applicant.
The question of costs falls for consideration in

these circumstances: Mrs Kumar was born on 24 November 1953
in Fiji and is a citizen of that country. She arrived at temporary entry permit which allowed her to remain in

Australia for three months. No further temporary entry permit
was granted since the expiry of that permit on 30 August 1989.
She was arrested under a. 92 of the aaration Act

("the Act") 1958 on the afternoon of 12 June 1991 by an

o f f i ce r a c t i n g pursuant t o t h a t Act and she was informed a t

t h a t t i m e t h a t there were reasonable grounds f o r supposing her

t o be an i l l e g a l e n t r a n t .

On the fo l lowing day, an a p p l i c a t i o n on b e h a l f o f

the Minis ter f o r an order au thor i s ing the d e t e n t i o n o f Mrs
Kumar under 8 . 92 o f the Act was heard by the f i r s t

respondent , W . W i t c h e l l .

S e c t i o n 92 r e l e v a n t l y providesr-

" ( 1 ) An o…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1991] FCA 747
Decision Date: 29 Oct 1991

CaseChat Overview and Summary

In the case of Kumar, B.W. v Mitchell, P., the applicant, Mrs. Kumar, a citizen of Fiji, was arrested for allegedly being an illegal entrant into Australia. The proceedings were brought against the first respondent, Mr. Mitchell, a stipendiary magistrate, and the second respondent, the Department of Immigration, Local Government and Ethnic Affairs. The legal issues in this case revolve around the interpretation of Section 92 of the Migration Act 1958 and the associated costs of the application.

The court examined the interpretation of Section 92(4) of the Act, which provides that a prescribed authority may authorise the detention of a person if there are reasonable grounds to suspect that the person is an illegal entrant. The court also considered the question of whether the stipendiary magistrate correctly exercised his discretion in authorising the detention of Mrs. Kumar.

The court found that the stipendiary magistrate's interpretation of Section 92(4) was erroneous, as he believed that the "may" in the subsection should be construed as "shall." However, the court proceeded on the basis that the second respondent was not a party to the error. The court considered the competing considerations between a citizen seeking redress for an error affecting that person's liberty and an organ of government initiating proceedings affected by error. In this case, the court found that the second respondent should not be relieved of the obligation to pay costs, and therefore, the proper order to make as to costs is that the second respondent pay the applicant's costs.

The final order made by the court is that the second respondent pay the applicant's costs, including reserved costs, to be taxed if not agreed. The court emphasised that this order implies no fault or blame on the part of the representatives of the second respondent.

Orders