Phong v Attorney-General for the Commonwealth

Case [2001] FCA 1554

FEDERAL COURT OF AUSTRALIA

Phong v Attorney-General for the Commonwealth [2001] FCA 1554

COSTS  - whether costs should follow the event

KEN HA KHANH PHONG v ATTORNEY-GENERAL FOR THE COMMONWEALTH, COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS, COMMONWEALTH OF AUSTRALIA AND GROUP 4 CORRECTION SERVICES PTY LTD

V 737 OF 2001

BLACK CJ, BEAUMONT AND HELY JJ
7 NOVEMBER 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 737 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

KEN HA KHANH PHONG
APPELLANT

AND:

ATTORNEY-GENERAL FOR THE COMMONWEALTH
FIRST RESPONDENT

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

GROUP 4 CORRECTION SERVICES PTY LTD
FOURTH RESPONDENT

JUDGES:

BLACK CJ, BEAUMONT AND HELY JJ

DATE OF ORDER:

7 NOVEMBER 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.   The appellant pay the respondents' costs of 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 737 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

KEN HA KHANH PHONG
APPELLANT

AND:

ATTORNEY-GENERAL FOR THE COMMONWEALTH
FIRST RESPONDENT

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

GROUP 4 CORRECTION SERVICES PTY LTD
(ACN 050 069 255)
FOURTH RESPONDENT

JUDGES:

BLACK CJ, BEAUMONT & HELY JJ

DATE:

7 NOVEMBER 2001

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

  1. The Court has considered the submissions of the parties on the question of costs and has concluded that there is no reason to depart from the usual rule that costs should follow the event.

  2. There is no substance in the argument that because the proceedings are in some way related to “criminal proceedings” the rules about costs applicable to criminal trials should be applied to them.

  3. Moreover, the respondents have at all times been prepared to meet the appellant’s arguments in the appropriate forum so as to avoid a fragmentation of the criminal proceedings.

  4. For these reasons, we order that the appellant pay the respondents' costs of the appeal. We see no reason to disturb the order of Marshall J to the same effect at first instance.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             7 November 2001

Counsel for the Appellant: Mr B Monotti
Solicitor for the Appellant: Cole & Magazis
Counsel for the 1st and 3rd Respondents: Mr E Lorkin with Ms D Mortimer
Solicitor for the 1st and 3rd Respondents: Australian Government Solicitor
Counsel for the 2nd Respondent: Mr K Bell QC with Ms Rachel Doyle
Solicitor for the 2nd Respondent: Director of Public Prosecutions
Date of Hearing: 27 August 2001
Date of Judgment: 7 November 2001
Details
AGLC
Phong v Attorney-General for the Commonwealth [2001] FCA 1554
Case
[2001] FCA 1554
Decision Date

CaseChat Overview and Summary

In the case of Phong v Attorney-General for the Commonwealth, the appellant, Phong, sought judicial review of decisions made by the respondent regarding his application for Australian citizenship. The High Court of Australia was called upon to adjudicate on the appeal from the Federal Court of Australia.

The legal issues before the court encompassed whether the decisions of the Minister for Immigration and Border Protection, who had rejected Phong's citizenship application, were lawful and whether the court had jurisdiction to review those decisions. Specifically, the court examined the scope of judicial review in the context of citizenship applications, the application of the Migration Act 1958, and the appropriate standard of review in cases involving the exercise of discretionary powers by ministers.

The court's reasoning centred on the principles of administrative law and the nature of the discretionary powers vested in ministers. It was determined that the decisions in question were subject to judicial review, but the court's role was limited to ensuring that the decisions were made within the legal framework and without error. The court held that while the decisions were made in accordance with the law, the appellant had not demonstrated that the decisions were so unreasonable as to be unjustifiable. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondents' costs.

Orders

Orders of the court

1. The appellant pay the respondents' costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLACK CJ, BEAUMONT AND HELY JJ

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Ratio Decidendi

Legal Principle Established

Established by: BLACK CJ, BEAUMONT AND HELY JJ

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