Minister for Immigration and Citizenship v Zaouk

[2007] FCAFC 138

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Zaouk [2007] FCAFC 138

MINISTER FOR IMMIGRATION AND CITIZENSHIP v JOSEPH ZAOUK AND MIGRATION REVIEW TRIBUNAL
NSD 2293 of 2006

MOORE, FINN AND MARSHALL JJ
22 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2293 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant
AND:	JOSEPH ZAOUK First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGES:	MOORE, FINN AND MARSHALL JJ
DATE OF ORDER:	22 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The first respondent pay the appellant’s costs of the proceedings below.

2.The first respondent pay seventy-five per cent of the appellant’s costs of the appeal. 

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2293 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant
AND:	JOSEPH ZAOUK First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGES:	MOORE, FINN AND MARSHALL JJ
DATE:	22 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the Court invited the parties to put in submissions on costs.  The appellant Minister had appealed on two substantive grounds although it was only necessary for him to succeed on one for the appeal to be allowed.  The Minister was in fact successful on only one of the two grounds. 

2. The first respondent has submitted that the most appropriate orders for this Court to make in these circumstances in relation to costs is to order that (i) the cost order of the Federal Magistrate be set aside, and (ii) there be no order for costs in the appeal.  The apparent justification for this proposal is that the balance of success and failure of each party is such that their respective costs should cancel each other out and that the ground on which the appellant succeeded was one which was in the public interest to have resolved. 

3. As is well known, the principle applied both to trials and on appeals is that costs follow the event unless there are special circumstances justifying some other order:  see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11]. Nonetheless, where a litigant succeeds only on a portion of a claim, or fails on certain issues, it may be reasonable in the circumstances either to make the litigant to bear its own costs of the portion of the claim or on the issue on which that person has failed, or to make the litigant pay the other party’s costs of the failed portion or issues.

4. At first instance the first respondent was the applicant for judicial review.  He challenged the Migration Review Tribunal’s decision on the two grounds which raised the same discrete issues of statutory interpretation that have been raised on the appeal.  The one related to the meaning of the word “relationship” in cl 820.211(8)(c) of the Migration Regulations (“the relationship issue”);  the other, to the requirements for statutory declarations imposed by reg 1.26 of the Migration Regulations (“the reg 1.26 issue”).  The present first respondent succeeded on both issues.  Of present relevance the Minister was ordered to pay his costs fixed in the sum of $5,500. 

5. The Minister appealed on both issues, but was successful only on the relationship issue:  see Minister for Immigration and Multicultural Affairs v Zaouk [2007] FCAFC 47. As noted above, that success was sufficient for the appeal to be allowed and for the decision below to be set aside and the decision of the Tribunal to be reinstated, albeit only justified by its conclusion on the relationship issue.

6. Having set aside the Federal Magistrate’s order as to costs, we consider on balance that the first respondent should pay the appellant’s costs of the proceeding below.  The appellant having raised both issues it was not unreasonable for the first respondent to have joined issue on both, although it has to be said that any reasonable estimate made by the Minister of his prospects on the reg 1.26 issue would have suggested they were slight.

7. Insofar as the costs of the appeal are concerned, while it is appropriate that an order be made in favour of the Minister given his success on the relationship issue, the order should be limited to seventy-five per cent of the costs of the appeal.  The relationship issue was not of such public interest as would warrant no order as to costs being made in relation to it.  However, the reagitation of the reg 1.26 issue, albeit on a different but equally indefensible basis, was doomed to failure.  It was not a ground that ought reasonably to have been prosecuted.  It was, though, of relatively minor moment in the appeal itself.  This is reflected in our abatement of the appellant’s costs by only twenty-five per cent. 

8. We will order that the first respondent pay (i) the appellant’s costs of the proceedings below and (ii) seventy-five per cent of the appellant’s costs of the appeal. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Finn and Marshall.

Associate:

Dated:        22 August 2007

Solicitor for the Appellant	Australian Government Solicitor
Solicitor for the Respondent:	Michael Jones, Solicitor
Date of Final Submissions:	14 May 2007
Date of Judgment:	22 August 2007