NAMD v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCAFC 245

FEDERAL COURT OF AUSTRALIA

NAMD v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 245

MIGRATION – appeal – costs – indemnity costs – whether it is appropriate to award indemnity costs where no ground can be made out for any relief and where no ground is even attempted to be made out

Federal Court of Australia Act 1976 (Cth) s 43, 43(2)
Federal Court Rules Order 52 r 18, r 18(1)

NAMD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 1309 OF 2003

SPENDER, HELY & BENNETT JJ
3 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1309 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAMD APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	SPENDER, HELY & BENNETT JJ
DATE OF ORDER:	3 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed with costs.

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	N 1309 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAMD APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	SPENDER, HELY & BENNETT JJ
DATE:	3 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

SPENDER J:

1. In this appeal the appellant, appears with the assistance of a Bengali interpreter.  The Court asked if he wished to say anything in support of his Notice of Appeal, which was filed on 8 September 2003.  The appellant indicated that there was nothing that he wished to say.  Notwithstanding directions communicated to him by letter of 14 October 2003 in respect of the filing of written submissions, the appellant confirmed that no written submissions had been made.

2. The ground of appeal from the judgment of Allsop J is solely:

   ‘The Honourable Court failed to find that the Tribunal made errors of law, procedural fairness, natural justice issue, jurisdictional failure and deny my opportunity to explain my genuine persecution in my home country Bangladesh.’

3. No material has been put in support or to substantiate those assertions or allegations.  There has, in truth, been no prosecution of the appellant’s appeal.  In the circumstances, there is nothing before the Court to suggest any error of any kind in what was done below.  In those circumstances the appeal should be dismissed with costs.

4. After the Court dismissed the appellant’s appeal, the Minister sought an order for costs on an indemnity basis.  The submissions on behalf of the Minister in support of that request have not been extensive or complete. 

5. Section 43 of the Federal Court of Australia Act 1976 (Cth) deals with the power of the Court to award costs. Section 43(2) provides:

   ‘Except as provided by any other Act, the award of costs is in the discretion of the Court or a judge.’

   There is power in an appropriate case to award costs on an indemnity or solicitor/client basis, however, in the absence of a complete and extensive submission on behalf of the Minister, the present case is not an appropriate case for the formulation of general principles as to whether to order solicitor/client costs in the context of migration matters. 

6. It is true that the Notice of Appeal was expressed in an unparticularised and unhelpful way in the recitation of the grounds of the appeal, and the appellant has done nothing by way of written submissions or oral submissions today in the prosecution of any right of appeal he might have had.

7. There is, however, another aspect which just bears noting, particularly in this area where frequently we have unrepresented litigants in a complex legal area and where frequently the Notice of Appeal is as unhelpful as the present one is.  That is the reference to Order 52 rule 18.  Where an appeal is incompetent and a respondent does not move under Order 52 rule 18(1), the rule provides:

   ‘The respondent shall not, unless the court otherwise orders, receive any costs of the appeal and the court may order that he pay the appellant any costs of the appeal proving useless or unnecessary.’

8. I refer to that provision because I would not like to encourage interlocutory applications dismissing appeals as incompetent where the more efficient route seems to me to be that which presently happens, in that the appeal is brought on and its value assessed and the appeal disposed of one way or the other, rather than being involved in interlocutory applications of the kind contemplated by Order 52 rule 18(1).

9. In all the circumstances I think that the ordinary order as to costs should apply in this appeal, namely that the appeal be dismissed with costs.

   HELY J:

10. I agree.

    BENNETT J:

11. I agree.

    SPENDER J:

12. The order of the Court is that the appeal be dismissed with costs. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Hely & Bennett JJ.

Associate:

Dated:             5 November 2003

The appellant appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron Lawyers
Date of Hearing:	3 November 2003
Date of Judgment:	3 November 2003