Minister for Immigration and Multicultural Affairs v Seligman

[1999] FCA 1204

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 1204

COSTS – whether costs should be ordered in favour of a successful party where the ground on which it succeeded was raised by the Court after the hearing of the appeal

MINISTER FOR IMMIGATION & MULTICULTURAL AFFAIRS v SELIGMAN
NG 391 OF 1998

FRENCH, NORTH AND MERKEL JJ
MELBOURNE
1 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG  391 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant
AND:	NORMAN SELIGMAN Respondent
JUDGES:	FRENCH, NORTH, MERKEL JJ
DATE OF ORDER:	1 SEPTEMBER 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

Paragraph C of the orders of the Court of 1 March 1999 be vacated and, in lieu thereof, there be an order that the appellant pay one half of the respondent’s taxed 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	NG  391 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant
AND:	NORMAN SELIGMAN Respondent

JUDGE:	FRENCH, NORTH, MERKEL JJ
DATE:	1 SEPTEMBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1. On 1 March 1999 the Court ordered that the appeal in this matter be dismissed and made certain orders as to costs.  Liberty to apply was reserved by the Court in respect of its decision that there be no order as to costs of the appeal.

2. The respondent has applied to the Court for an order for costs in his favour on the basis that he succeeded on the appeal and that costs should follow the event.  Alternatively, the respondent contended that additional costs were incurred by him for which he ought to be recompensed as a result of the appeal being heard in Melbourne and running into a second day.

3. The appellant contended that as the outcome of the appeal turned on an issue which had not been advanced by either party at either first instance or on the appeal the present case is one in which it is appropriate that there be no order as to costs.

4. The unusual costs orders made in the present matter arose from the fact that the appeal was dismissed on a ground that had not been argued, either at trial or on the appeal.  The ground was raised by the Court for the consideration of the parties after the hearing of the appeal.  Thus, the appeal was dismissed on a basis different to that upon which the learned trial Judge had decided the case.  As a result of the conclusions reached by the Court it was unnecessary for it to consider what the outcome of the appeal would have been had the respondent not succeeded on the ground raised by the Court.

5. The concern of the Court in relation to costs was that there was some unfairness in holding the unsuccessful appellant responsible for the respondent’s costs of the hearing of the matter before the learned trial Judge and also on appeal when the matter was determined on a ground that the appellant could not have been expected to consider prior to it being raised by the Court after the hearing of the appeal.

6. In those circumstances the Court formed the view that the appropriate order, upon the appeal being dismissed, was to vary the orders made by the learned trial Judge, before whom the respondent was successful, to allow the application but on the ground raised by the Full Court rather than on any of the grounds upon which the respondent had succeeded at trial.  The Court then ordered that the appellant pay the respondent’s costs of the application, other than the costs of the hearing.  For a similar reason the Court was of the preliminary view that it was appropriate to make no order as to the costs of the appeal.

7. The Court has now reconsidered the matter in the light of the submissions made on behalf of the respondent and of the appellant.  The respondent correctly points out that the Minister had partly succeeded and partly failed on the issues considered by the Full Court and that it was not necessary for the Court to consider whether the respondent would have succeeded, in any event, in having the appeal dismissed on the ground raised by the respondent’s notice of contention which the Full Court considered had merit.  In the

   circumstances we consider that it is appropriate to order that the appellant pay one half of the respondent’s taxed costs of the appeal.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             

Counsel for the Appellant	Mr RRS Tracey QC with Ms RM Henderson
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	Mr A Robertson SC with Ms L McCallum
Solicitor for the Respondent:	Hitchcock and Associates
Written Submissions:	The respondent’s submissions were dated 4 March 1999 and the appellant’s submissions were dated 7 May 1999
Date of Judgment:	1 September 1999