Ozberk, Kemal v Minister for Immigration & Multicultural Affairs

[1998] FCA 1692

FEDERAL COURT OF AUSTRALIA

COSTS – Costs awarded against the unsuccessful party, excluding interlocutory appeal.

KEMAL OZBERK, BILGIYE OZBERK, PINAR OZBERK & PERVIN OZBERK –v– THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

VG 36 of 1997

MARSHALL J
MELBOURNE
22 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 36  of   1997

BETWEEN:

KEMAL OZBERK
FIRST APPLICANT

BILGIYE OZBERK
SECOND APPLICANT

PINAR OZBERK
THIRD APPLICANT

PERVIN OZBERK
FOURTH APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

22 DECEMBER 1998

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. The applicants pay the respondent’s costs of the application other than the costs of their appeal to the Full Court from the interlocutory judgment of 19 January 1998.

1. Each party bear her or his own costs of the appeal to the Full Court from the interlocutory judgment of 19 January 1998.

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	VG 36 of 1997

BETWEEN:

KEMAL OZBERK
FIRST APPLICANT

BILGIYE OZBERK
SECOND APPLICANT

PINAR OZBERK
THIRD APPLICANT

PERVIN OZBERK
FOURTH APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	MARSHALL J
DATE:	22 DECEMBER 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

On 15 December 1998 the Court ordered that the application be dismissed. It did not then deal with the question of costs but invited the parties to make submissions in writing on that issue.

That course was adopted having regard to the reservation of costs by the Full Court, in its judgment of 13 July 1998, in the applicants’ appeal from the Court’s interlocutory judgment of 19 January 1998.

In their written submissions the solicitors for the applicants’ contended as follows:

“10.In this case the applicant made an application by Notice of Motion seeking to have fresh evidence considered by this Court. That application was dismissed. On appeal to the Full Court, the procedure adopted by the applicant was criticised but the appeal was successful to the extent that the Full Court left it open to the applicant to seek to introduce the fresh evidence on the substantive hearing. The Full Court ordered that costs be in the cause.

11.This Court has now rejected the argument for reception of the fresh evidence. However, it is submitted that in the light of the Full Court’s decision, it was clearly open to seek to adduce that evidence. As a result of the Full Court’s costs order, the applicant, if now ordered to pay the costs of the failed appeal, will also incur the burden of the costs of the Notice of Motion. That would be oppressive.

12.It is submitted that the applicant’s Application for review was not without merit and that his appeal to the Full Court was not without merit. It is further submitted that it was proper for him to litigate the fresh evidence point. The Full Court appears to have accepted that it was. This Court has not described this Application for Review as frivolous or untenable.”

In his written submissions the solicitor for the respondent said, inter alia, as follows:

“8.The history of the matter is pertinent. On 19 January 1998 the Court ordered that the applicants’ Notice of Motion dated 17 November 1997 be dismissed and that the applicants pay the respondent’s costs of the Notice of Motion. Argument over this issue occupied a full day.

9.The applicants then appealed this decision and on 13 July 1998 the Full Court refused the applicants leave to appeal the order of the Court. The ground upon which leave was refused was that no important question of principle was involved in the application for leave. The Full Court ordered that the costs of the appeal were to be costs in the cause. The Full Court in its reasons stated that there was no reason why the applicants’ argument that fresh evidence was relevant to the questions of law raised by the application could not be made on the hearing of the application.

10.On 15 December 1988 (sic) the Court found that the fresh evidence sought to be admitted by the applicants was not relevant to any question of law which could be successfully relied upon in the application and found that no error of law was disclosed and dismissed the applicants’ application.”

I see no reason why the respondent should not have the costs of the applicants’ Notice of Motion dated 17 November 1997, having succeeded on that motion. Ordinarily I would see no reason why the respondent should not have his costs of the application, being the successful party.

However in the circumstances of this matter I do not believe it would be fair to visit upon the applicants the costs of the appeal to the Full Court given the following considerations:

• the Full Court clarified the basis upon which new evidence may be attempted to be tendered before a single judge reviewing a decision of the Refugee Review Tribunal

• such clarification was in the public interest

Accordingly, having regard to the special circumstances in connection with the appeal proceeding, it is my view that the applicants should not have to pay the costs of the appeal. Otherwise I see no reason why costs should not follow the event.

The orders of the Court are as follows:

1. The applicants pay the respondent’s costs of the application other than the costs of their appeal to the Full Court from the interlocutory judgment of 19 January 1998.

1. Each party bear her or his own costs of the appeal to the Full Court from the interlocutory judgment of 19 January 1998.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Associate:

Dated:             22 December 1998

Solicitors for the Applicants:	Erskine Rodan & Associates
Solicitor for the Respondent:	Australian Government Solicitor
Receipt of Written Submissions:	18 December 1998
Date of Judgment:	22 December 1998