Minister for Immigration & Multicultural & Indigenous Affairs v VBAO of 2002

[2004] FCA 1581

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v VBAO of 2002 [2004] FCA 1581

PRACTICE AND PROCEDURE – costs – whether rule that costs follow the event displaced by special circumstances – appeal raised important and novel question of construction – no costs order made

Ruddock v Vadarlis (2001) 115 FCR 229, [2001] FCA 1865, applied

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v VBAO OF 2002

V 680 OF 2004

MARSHALL J
3 DECEMBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 680 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:	VBAO OF 2002 RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	3 DECEMBER 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.   There be no order for costs in respect of the judgment of the Federal Magistrates Court of 14 May 2004.

2.   There be no order for costs in 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
VICTORIA DISTRICT REGISTRY	V 680 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:	VBAO OF 2002 RESPONDENT

JUDGE:	MARSHALL J
DATE:	3 DECEMBER 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 19 November 2004 in Minister for Immigration & Multicultural & Indigenous Affairs v VBAO of 2002 [2004] FCA 1495 (“the substantive judgment”), the Court ordered that:

   1.   The appeal be allowed.

   2.   The orders of the Federal Magistrates Court of 14 May 2004 be set aside.

   3.   The application for judicial review of the decision of the Refugee Review Tribunal of 29 January 2002 be dismissed.

   4. Within 7 days of the date of this order the parties file and serve brief written submissions on the question of costs, including any application under s 6(2) of the Federal Proceedings (Costs) Act 1981 (Cth), which the respondent may make.

2. Pursuant to order 4 of the Court’s orders in the substantive judgment, the legal representatives of the parties filed submissions on the question of costs.

3. Counsel for the respondent’s primary position is that the costs order below in favour of the respondent should be preserved and that there be no costs of the appeal. In the alternative counsel sought a certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).

4. Order 2 of the orders made on 19 November 2002 set aside the costs order made below.  I see no basis for its revival.  Further, in my view, there should be no order as to the costs of the appeal.

5. I accept the submission of counsel for the respondent that the issue below and on appeal involved an important and novel question of the construction of s 91R of the Migration Act 1958 (Cth).

6. It follows that I consider that there are special and extraordinary circumstances applicable in this matter such that costs should not follow the event.  I reject the submission of the solicitors for the appellant that costs should follow the event.  As Black CJ and French J said in Ruddock v Vadarlis [2001] FCA 1865, (2001) 115 FCR 229 at [17]:

   “Where an appeal raises a novel question of much general importance and some difficulty the appeal court may decline to order costs against the unsuccessful appellant”.

   The current matter is an appropriate occasion to so decline.

7. Accordingly the Court will order:

   1.   There be no order for costs in respect of the judgment of the Federal Magistrates Court of 14 May 2004.

   2.   There be no order for costs in the appeal.

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

Associate:

Dated:             3 December 2004

Solicitors for the Appellant:	Clayton Utz
Counsel for the Respondent:	Mr R Niall (pro bono)
Completion of Written Submissions:	26 November 2004
Date of Judgment:	3 December 2004