Othman, A.J.A. v The Minister for Immigration & Ethnic Affairs

[1995] FCA 326

CATCHWORDS

PROCEDURE - costs - departing from the general rule - proceeding conceded on ground other than appeal brought - no argument on the merits - whether costs should be apportioned

Kaur v Minister for Immigration,  Local Government and Ethnic Affairs  (Carr J, 9 February 1994, unreported)
Minister for Immigration, Local Government and Ethnic Affairs and Anor v Mok Gek Bouy (1994) 127 ALR 223
ASC v Aust-Home Investments Ltd (1993) 44 FCR 194
J T Stratford and Sons Ltd v Ludler (1969) 1 WLR 1547

ASIM JAMILE ABU OTHMAN and ANTOINETTA ABU OTHMAN v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS                   NO WAG 10 OF 1995

JUSTICE R D NICHOLSON
PERTH
24 MAY 1995

IN THE FEDERAL COURT OF AUSTRALIA   )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION                   )     NO WAG 10 OF 1995

B E T W E E N:              ASIM JAMILE ABU OTHMAN

First Applicant

and

ANTOINETTA ABU OTHMAN

Second Applicant

and

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:     JUSTICE R D NICHOLSON

DATE OF ORDER:         24 MAY 1995

WHERE MADE:            PERTH

THE COURT ORDERS THAT:

The respondent pay the applicants' costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA   )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION                   )     NO WAG 10 OF 1995

B E T W E E N               ASIM JAMILE ABU OTHMAN

First Applicant

and

ANTOINETTA ABU OTHMAN

Second Applicant

and

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM:JUSTICE R D NICHOLSON

DATE:24 MAY 1995

PLACE:PERTH

REASONS FOR ORDER

This matter arises from an application for an Order to Review a decision made by Mr Steven Meredith of the Department of Immigration and Ethnic Affairs, on 22 December 1994, ("the decision"), which refused an application by the first applicant for a grant of resident status pursuant to s6(2) of the Migration Act 1958.

At a directions hearing on 21 April 1995 the respondent conceded that Mr Meredith did not have the authority to act as a delegate of the Minister of Immigration and Ethnic Affairs at the time the decision was made.  The respondent further conceded that the grounds for defending this matter had therefore "collapsed".  Accordingly,  an order was made in the course of the directions hearing that the decision be quashed.  The respondent then contend that the ordinary rule as to costs, namely that costs should follow the event, should not be applied in these circumstances.

In support of that contention the respondent submitted that where an application under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") has been determined on its merits and an application has been successful on one or more grounds but has failed in respect of other grounds the circumstances may be such that the applicant will not be awarded all of his or her costs and that each party may be required to pay some of the respondent's costs. Two cases are cited in which it is contended that this principle has been applied:  Kaur v Minister for Immigration,  Local Government and Ethnic Affairs  (Carr J, 9 February 1994, unreported);  and Minister for Immigration, Local Government and Ethnic Affairs and Anor v Mok Gek Bouy (1994) 127 ALR 223 per Sheppard J at 255.

Kaur (supra) was an application in this Court for an Order to Review two decisions made by delegates of the Minister for Immigration, Local Government and Ethnic Affairs. The first decision was to serve a Notice of Status to declare the applicant an illegal entrant. The second decision refused an application for an extended eligibility (family) entry permit under Reg127 of the Migration Regulations 1989. The application was dismissed in respect of the first decision. The application in respect of the second decision succeeded in that the decision was remitted to the respondent for reconsideration according to law. Costs were apportioned so that the applicant would pay two thirds and the respondent would pay one third. This reflected the success of the respondent in relation to the illegal entry application. It may therefore be distinguished from the present case in that here the respondent has not been particularly successful.

The present facts are also distinguishable from Mok (supra) where the costs were apportioned to reflect the position that, although the appellants had failed on the appeal,  they had had a degree of success on certain grounds in the appeal.  In addition,  the costs determination there was made after a full substantive hearing on the merits of the case.  For the respondent it is conceded that the present case is not one where the merits of the case have been considered.  Both cases may therefore be distinguished from the present case.

For the respondent it is further submitted that in a case such as the present,  where there has been no trial on the merits,  it is not appropriate for a court to determine for itself the case on the merits,  or to determine the outcome of a hypothetical trial.  The respondent cites ASC v Aust-Home Investments Ltd (1993) 44 FCR 194 per Hill J at 201 referring to J T Stratford and Sons Ltd v Ludler (1969) 1 WLR 1547. I accept the submission for the applicant that it is not appropriate for me to hypothesise as to the outcome of a hearing on the grounds appealed. The cases referred to may be distinguished from the present case because they were concerned with factual situations where neither party had been successful and not where one party concedes that the foundation for their case has "collapsed". The effect of the Order made by me on the 21 April 1995 to quash the decision of Mr Meredith is to make that decision void ab initio.  The concession made on behalf of the respondent has the effect that the decision can no longer stand so that the other grounds of the application become otiose.

I therefore conclude that there is no basis in this matter to depart from the ordinary rule that costs should follow the event.

For these reasons I will order that the respondent pay the applicants' costs of the application.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date:

APPEARANCES

Counsel for the Applicant:       Mr H Christie

Solicitors for the Applicant:      Legal Aid Commission of Western Australia

Counsel for the Respondent:      Mr P MacLiver

Solicitors for the Respondent:    Office of the Australian Government Solicitor

Date of Directions Hearing:      21 April 1995

Date of Order:                   24 May 1995