Minister for Immigration, Local Government & Ethnic Affairs v Bouy

[1995] FCA 89

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )    No.  VG508  of  1993
  )
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS AND MALCOLM PATERSON

Appellants

AND:MOK GEK BOUY

Respondent

COURT:    BLACK CJ, LOCKHART and SHEPPARD JJ.

DATE:3 MARCH 1995

PLACE:MELBOURNE

REASONS FOR JUDGMENT
THE COURT:

On 22 December 1994 the Court gave judgment in this appeal.  It varied the orders made by Keely J. on 12 November 1993 in one respect and otherwise dismissed the appeal from his Honour's judgment.  The Court made an order for costs of the appeal in favour of the respondent and stood over for later determination the question of the costs of the proceeding before Keely J. at first instance.  Directions were given by the Court with respect to the determination of that question including directions that the parties file written submissions.  Those submissions have been filed.  One of the directions made by the Court on 22 December 1994 (5(d)) was that the matter be relisted for judgment or, if the Court so determined, further argument on a date to be notified to the solicitors for the parties by the Associate to the Chief Justice.  We do not think it necessary to hear further argument, so shall proceed now to determine the question of costs.

The circumstances in which an appellate court will interfere with the discretion of a trial judge on the question of costs is well settled by authority.  It is sufficient to refer to House v The King (1936) 55 CLR 499 at 504-5; Lombok Pty Limited v Supetina Pty Limited (1987) 14 FCR 226 at 239-240; and Queensland Wire Industries Pty Limited v BHP Co Limited (1987) 17 FCR 211 at 222.

The learned primary Judge understood the issues, the facts and the submissions of counsel that put him in a special position.  But key findings of his Honour on the issues of alleged apprehended bias and alleged failure by the Minister to disabuse delegates with respect to the effect of the statement of the Prime Minister of the day were reversed on appeal.  In these circumstances it is for this Court to exercise its own discretion for that of his Honour.

The Court has a discretion to make such order as seems just in the circumstances of the case.  One principle which emerges from the authorities is that a successful party will not necessarily be deprived of the costs of an issue upon which he or she has failed.  This matter was referred to by Jacobs J. of the Supreme Court of South Australia in Cretazzo v Lombardi (1975) 13 SASR 4 where his Honour said (at 16):

"But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law.  The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case.  There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike.  I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues."

This passage was cited by Toohey J, when a Judge of this Court, in Hughes v Western Australian Cricket Association (Inc.) [1986] ATPR 40-748. There Toohey J said (at 48-136):

"The discretion [to award costs] must of course be exercised judicially.  There are decisions, both of Australian and English courts, that throw light on the way in which the discretion is to be exercised.  I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect.

1.Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.  Ritter v. Godfrey [1920] 2 K.B. 47.

2.Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed.  Forster v. Farquhar [1893] 1 Q.B. 564.

3.A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them.  In this sense, `issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law.  Cretazzo v. Lombardi (1975) 13 S.A.S.R. 4 at p. 12.

There is no difficulty in stating the principles; their application to the facts of a particular case is not always easy."

What Toohey J there said has been applied in a number of cases in this Court.  We instance Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211 at 222 where the Court said that Toohey J in the Hughes case had summarised `the well-known guidelines within which the discretion as to costs is exercised.'"

The proceedings before Keely J. occupied many hearing days.  The discovery was extensive.  The parties are not in agreement as to the time taken at the trial in evidence and submissions relating to the various issues before the primary Judge; but we are satisfied that the time taken in the preparation of the case for trial, giving evidence and making submissions at the trial with respect to the issues on which the respondent failed at the trial or on appeal was considerable.

Taking all relevant matters into account, in our opinion
the proper order for costs is that the first appellant pay one-half of the respondent's costs of the proceeding at first instance including reserved costs.  It is not appropriate that an order for costs of the proceeding at first instance be made against the second respondent, Mr Paterson.

I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment herein of the Court.

Associate

Dated:       2 March 1995 

Counsel for the Appellants   :        R R S Tracey QC with

A Cavanough

Solicitors for the Appellants     :        Australian Government Solicitor

Counsel for the Respondents  :        P N Rose with

G J Moloney

Solicitors for the Respondents:      Ms Eve Lester

Date of Judgment            :        3 March 1995