SZITH v Minister for Immigration and Citizenship (No 2)

[2008] FCA 1932

FEDERAL COURT OF AUSTRALIA

SZITH (No 2) v Minister for Immigration and Citizenship [2008] FCA 1932

SZITH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1414 of 2008

MIDDLETON J
18 DECEMBER 2008
MELBOURNE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1414 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZITH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE OF ORDER:	18 DECEMBER 2008
WHERE MADE:	MELBOURNE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The orders of the Federal Magistrates Court be set aside.

2.There be no order as to costs of the proceedings before the Federal Magistrates Court.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1414 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZITH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE:	18 DECEMBER 2008
PLACE:	MELBOURNE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. On 10 December 2008, the Court upheld the appellant’s appeal and ordered that the matter be remitted to the Federal Magistrates Court differently constituted to determine the question of whether the Tribunal’s decision was affected by apprehended bias, and that there be no order as to costs of the appeal.

2. The appellant seeks the following orders in respect of costs (which application I indicated I would entertain upon pronouncing orders on 10 December 2008):

   a.the respondent pay the appellant’s costs of the appeal;

   b.the costs of the Federal Magistrates Court proceedings be reserved for the Federal Magistrate allocated to hear the matter on remittal.

3. The appellant seeks the costs of the appeal based on the ordinary rule that costs follow the event, that event being that the appeal was successful and the decision of the Federal Magistrates Court had been set aside.

4. Undoubtedly, the principle behind ordering costs is to indemnify the successful party for the cost of vindicating his or her position: see generally Oshlack v Richmond River Council (1998) 193 CLR 72, at 75 per Brennan CJ; and 97-8 per McHugh J.

5. The appellant has been successful on a ground which has always formed part of the appeal, namely the refusal of the Federal Magistrate to admit evidence.  I observe that the appellant has not failed on the other ground relating to the bias point (the point independent of the evidence of Ms Peterson) as the Court declined to determine that ground in light of the success of the ground concerning Ms Peterson.

6. It is not suggested, nor is there any basis to suggest, any misconduct in the appeal.  The grounds rejected were not unarguable or improperly placed before the Court for consideration. 

7. However, in the appropriate case while costs ordinarily follow the event, a litigant who has succeeded on only a portion of their claim or failed on certain issues may have to bear the expense of those parts or be ordered to pay the other party’s costs of those issues: see Ruddock v Vardalis (No 2) (2001) 115 FCR 229 at 234-5 per Black CJ and French J.

8. In light of the Court’s reasons and orders both parties have had a measure of success.  In my view an order as to costs in favour of the appellant would not be appropriate in view of the discrete grounds upon which the appellant failed, including substantive challenges to the Tribunal’s decision.  After all, the main contention of the appellant was to have the Tribunal’s decision set aside.

9. Therefore, I will not vary the order that there be no order as to costs.  As there was no legal representation on behalf of the appellant before the Federal Magistrates Court, I will order that there be no order as to costs before the Federal Magistrates Court.

10. The previous orders made on 10 December 2008 will remain.

11. The orders of the Court today will be:

    1.The orders of the Federal Magistrates Court be set aside.

    2.There be no order as to costs of the proceedings before the Federal Magistrates Court.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate:

Dated:        18 December 2008

Counsel for the Appellant:	Mr S E J Prince
Counsel for the Respondents:	Mr T Reilly
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	19 November 2008
Date of Judgment:	18 December 2008