Saini v Minister for Immigration and Border Protection (No. 2)

[2016] FCA 870

FEDERAL COURT OF AUSTRALIA

Saini v Minister for Immigration and Border Protection (No. 2) [2016] FCA 870

Appeal from:	Saini & Anor v Minister for Immigration & Anor [2015] FCCA 2379
File number:	NSD 1105 of 2015
Judge:	LOGAN J
Date of judgment:	29 July 2016
Catchwords:	COSTS – whether costs ought to follow the event
Date of hearing:	25 February 2016
Date of last submissions:	4 April 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	3
Counsel for the Appellants:	Mr Radha Nair
Counsel for the Respondents:	Mr M Smith
Solicitor for the Respondents:	DLA Piper

ORDERS

NSD 1105 of 2015

BETWEEN:

HARNEET SAINI

First Appellant

AVTAR SINGH

Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	29 JULY 2016

THE COURT ORDERS THAT:

1.The appellants pay the first respondent’s costs of an incidental to the appeal, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

LOGAN J:

1. Upon the pronouncement of judgment dismissing the appeal (Saini v Minister for Immigration and Border Protection [2016] FCA 858), the Minister sought an order for costs on the basis that costs, in the ordinary course, as a matter of discretion, follow the event.

2. The discretion in respect of costs is, of course, unfettered, but it is one which must be exercised judicially.  And in the ordinary course of events a judicial exercise of the discretion does indeed entail the making of an order that costs follow the event.  On behalf of the appellants, it was submitted that the appeal served to resolve a conflict of authority in the Federal Circuit Court, which had become apparent in respect of the construction of the Migration Regulation item in question.  That was in support of the further submission that the appeal had therefore not just served only the interests of the appellant, but also a wider public interest. 

3. I accept that this is a relevant consideration in relation to the exercise of a costs discretion.  Further, the regulation is one which is likely to arise for construction and application quite often.  Accepting all that, the view that I have nonetheless, is that the case is one where, an order for costs having been sought by the Minister, an order should be made in the Minister’s favour on the ordinary basis of costs following the event.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:   

Dated:        5 August 2016