2.The respondent pay the appellant's costs of and incidental to the proceedings in the Supreme Court of the Northern Territory and the Court of Appeal of the Northern Territory.
3.The respondent pay the appellant's costs of the appeal to this Court.
On appeal from the Supreme Court of the Northern Territory
Representation
S L Brownhill SC, Solicitor-General for the Northern Territory, with L S Peattie for the appellant (instructed by Solicitor for the Northern Territory)
Submitting appearance for the respondent
M A Crawley SC with M J M Littlejohn appearing as amicus curiae (instructed by Miles Crawley, SC)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Northern Territory v Sangare
Practice and procedure – Costs – Where respondent commenced defamation proceedings against appellant – Where appellant wholly successful on appeal and at first instance – Where appellant sought order that respondent pay its costs – Where Court of Appeal made no order as to costs because respondent's impecuniosity would likely render order futile – Whether appellant entitled to order for costs – Whether impecuniosity of unsuccessful party can alone justify decision to deny successful party its costs.
Words and phrases – "award", "costs", "discretion as to costs", "futility", "impecuniosity", "indemnity", "litigant-in-person", "litigation", "matters relating to costs", "successful party", "unmeritorious litigation", "unsuccessful party".
KIEFEL CJ, BELL, GAGELER, KEANE AND NETTLE JJ. At issue in this appeal is whether, in the exercise of the judicial discretion as to costs at the conclusion of litigation, the impecuniosity of the unsuccessful party is a consideration that, without more, may justify a decision to deny the successful party its costs. The Court of Appeal of the Supreme Court of the Northern Territory resolved this issue in the affirmative, in favour of the respondent.
The appellant submitted that the Court of Appeal erred in principle in treating the respondent's impecuniosity, without more, as sufficient reason to deny the appellant an order for its costs of the litigation, in which it had been wholly successful, so that the Court of Appeal's exercise of the discretion as to costs miscarried[1]. The appellant also submitted that it was not open to the Court of Appeal to refuse to award the appellant its costs on the ground that such an order would be futile.
The appellant's submissions should be accepted. Accordingly, the appeal to this Court must be allowed.
Background
The respondent is a citizen of Guinea who arrived in Australia in May 2011 under a Belgian…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Northern Territory v Sangare [2019] HCA 25
Case
[2019] HCA 25
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Northern Territory against a decision of the Northern Territory Court of Appeal concerning costs in defamation proceedings. The respondent, Mr. Sangare, had commenced defamation proceedings against the Northern Territory, alleging that a briefing note prepared by the Department of Infrastructure contained defamatory material. The Northern Territory was wholly successful in the proceedings, both at first instance in the Supreme Court of the Northern Territory and on appeal to the Court of Appeal. Despite this success, the Court of Appeal made no order as to costs, citing Mr. Sangare's impecuniosity as a likely reason why any costs order would be futile. The Northern Territory sought an order that Mr. Sangare pay its costs.
The central legal issue before the High Court was whether the impecuniosity of an unsuccessful party, on its own, could justify a court's decision to deny a wholly successful party its costs. The High Court was required to determine if the Court of Appeal had properly exercised its discretion in making no order as to costs, or if its reasoning was flawed.
The High Court reasoned that the courts have consistently rejected the notion that an order for costs should not be made against an impecunious party simply because it might be futile to do so. The existence of a debt created by a costs order is considered a benefit to the successful party, regardless of the immediate enforceability. It cannot be assumed that an unsuccessful party will never have the means to pay the debt, or that the debt might not be turned to valuable account in other ways. The Court held that the respondent's impecuniosity was not a relevant consideration for the proper exercise of the Court of Appeal's discretion as to costs and that the Court of Appeal's decision could not be supported as an exception to the general principle that a wholly successful party should be entitled to an order for costs.
Accordingly, the High Court allowed the appeal. It ordered that the respondent pay the appellant's costs of and incidental to the proceedings in the Supreme Court of the Northern Territory and the Court of Appeal of the Northern Territory, as well as the appellant's costs of the appeal to the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. The respondent pay the appellant's costs of and incidental to the proceedings in the Supreme Court of the Northern Territory and the Court of Appeal of the Northern Territory.
3. The respondent pay the appellant's costs of the appeal to this Court.
Background
Background to the litigation
The appellant's submissions should be accepted. Accordingly, the appeal to this Court must be allowed.Background The respondent is a citizen of Guinea who arrived in Australia in May 2011 under a Belgian passport belonging to his brother. He applied for a protection (Class XA) visa under the Migration Act 1958 (Cth) in June 2011. His application was refused by a delegate of the Minister for Immigration and Citizenship, and that decision was affirmed by the Refugee Review Tribunal on 22 October 2012[2].[2]Sangare v Northern Territory [2018] NTCA 10 at [4]. Between 20 June and 28 August 2014, the respondent was employed on a temporary basis as a civil engineer with the Northern Territory Department of Infrastructure ("the Department"). On 28 August 2014, the Department offered the respondent a permanent position on the footing that it would sponsor him under a skilled migration scheme run by the Commonwealth Government. As part of that scheme the respondent was required to apply for and obtain the appropriate visa[3].[3]Sangare v Northern Territory [2018] NTCA 10 at [5]. In November 2014, the respondent was advised by the Commonwealth Government that his application for a temporary work visa was invalid because he had previously been refused a protection visa. The respondent sought expressions of support for his visa application from the Minister of the Department. The Minister, in turn, requested that officers of the Department brief him in relation to the respondent's request[4]. [4]Sangare v Northern Territory [2018] NTCA 10 at [6]‑[7]. The Chief Executive of the Department provided the Minister with a briefing note. The respondent alleged that the briefing note contained material defamatory of him, and instituted proceedings against the appellant for damages. In particular, the respondent complained that the briefing note contained material fabricated by the Department to make it appear that the respondent had provided false and misleading information in relation to his immigration status, and to make it appear that the respondent was a dishonest person and of bad character[5].[5]Sangare v Northern Territory [2018] NTCA 10 at [7]‑[8].The proceedings The respondent commenced proceedings in the Local Court of the Northern Territory against the appellant. He sought damages in the sum of $5 million. Because of the amount of damages claimed by the respondent, the proceeding was transferred to the Supreme Court of the Northern Territory[6].[6]See Local Court Act2015 (NT), ss 12 and 13(1)(b). On 6 February 2018, the trial judge, Grant CJ, dismissed the respondent's action[7]. His Honour found that the publication attracted protection from liability under s 27 of the Defamation Act 2006 (NT) and the general law defence of qualified privilege[8]. His Honour indicated that he would hear the parties as to costs[9], but the respondent filed a notice of appeal before that could occur. As a result, no order as to the costs of the trial was made by the trial judge.[7]Sangare v Northern Territory [2018] NTSC 5.[8]Sangare v Northern Territory [2018] NTSC 5 at [124].[9]Sangare v Northern Territory [2018] NTSC 5 at [126].
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL, GAGELER, KEANE AND NETTLE JJ
In any event, as a matter of authority, the courts have consistently rejected the suggestion that a costs order should not be made against an impecunious party because it would be futile to do so[37]. The circumstance that a person may not presently, or even foreseeably, be able to meet an order for costs has not been regarded as a reason to regard the creation of the debt as an exercise in futility. The very existence of the debt created by the order is a benefit to a creditor. The successful party is better off with the benefit of the order than without it. It simply cannot be assumed that the respondent will never have the means to pay the debt in whole or in part or that it might not otherwise be turned to valuable account by the appellant[38].[37]See Selliah v Minister for Immigration and Multicultural Affairs [1998] FCA 469 at 4; MZARS v Minister for Immigration and Border Protection [2017] FCA 177 at [36]-[37]; Graham v Minister for Immigration and Border Protection [No 2] [2018] FCA 1116 at [16]-[17].[38]Tozier v Hawkins (1885) 15 QBD 680; The Commonwealth v Mewett (1997) 191 CLR 471 at 535; [1997] HCA 29.Conclusion and orders The respondent's impecuniosity was the only reason identified by the Court of Appeal for depriving the appellant of its costs. That consideration was not relevant to the proper exercise of the Court's discretion as to costs. The Court of Appeal's decision cannot be supported as an exception to the general principle that a wholly successful party should be entitled to an order for costs. It follows that the appeal must be allowed. The appeal should be allowed. The respondent should pay the appellant's costs of and incidental to the proceedings in the Supreme Court of the Northern Territory at first instance and in the Court of Appeal. The respondent should pay the appellant's costs of the appeal to this Court.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, GAGELER, KEANE AND NETTLE JJ