Yusuf v Minister for Immigration and Multicultural Affairs

[2002] FCA 1582

FEDERAL COURT OF AUSTRALIA

Yusuf v Minister for Immigration & Multicultural Affairs
[2002] FCA 1582

COSTS – whether applicant should pay respondent’s costs where applicant has been wholly unsuccessful on application – ordinarily costs are to compensate a successful party for the expense of being involved in litigation - general rule is that costs follow the event and a successful litigant will receive costs in the absence of circumstances justifying some other order –  whether conduct of officers of the respondent before trial is capable of disentitling a successful party from the usual order - actual conduct of litigant must be considered – whether in the particular circumstances of this case the interests of justice permit, or require, that there be no order as to costs

Federal Court of Australia Act 1976 (Cth), s 43
Migration Act 1958 (Cth), s 192

Trade Practices Commission v Nicholas Enterprises Pty Ltd & Ors (1979) ATPR 40-141;
28 ALR 201, referred to
Cretazzo v Lombardi (1975) 13 SASR 4, referred to
Donald Campbell & Co v Pollak (1927) AC 732, referred to
Cilli v Abbott (1981) 53 FLR 108, referred to
Latoudis v Casey (1990) 170 CLR 534, cited
Ritter v Godfrey [1920] 2 KB 47, cited

OLUWATOYIN OLUWASANMI YUSUF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

No Q 152 of 2001

SPENDER J
BRISBANE
20 DECEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 152 OF 2001

BETWEEN:	OLUWATOYIN OLUWASANMI YUSUF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	20 DECEMBER 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

There be no order as to the 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
QUEENSLAND DISTRICT REGISTRY	Q 152 OF 2001

BETWEEN:	OLUWATOYIN OLUWASANMI YUSUF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SPENDER J
DATE:	20 DECEMBER 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 6 September 2002, I ordered that the application by Dr Yusuf for an order of review of the decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the respondent”) (now the Minister for Immigration and Multicultural and Indigenous Affairs) to cancel Dr Yusuf’s temporary visa be dismissed.  I then indicated my view that the general principle that a successful party is entitled to its costs should not be followed in this case and that there should be no order as to costs.  After hearing the solicitor for the respondent on that day, I, then, made no order about the costs of the proceedings, and invited the parties to make written submissions on the question of costs within seven days. I have been assisted by submissions on behalf of the respondent, on behalf of Dr Yusuf, and the respondent in reply.

2. Section 43 of the Federal Court of Australia Act 1976 (Cth) (“the Act”) provides:

   “(1)Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.

   …

   (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.”

3. The discretion to award costs is an unfettered discretion, except that it must be exercised judicially, not arbitrarily or capriciously, and cannot be exercised on grounds unconnected with the litigation: Trade Practices Commission v Nicholas Enterprises Pty Ltd & Ors (1979) ATPR 40-141; 28 ALR 201; Cretazzo v Lombardi (1975) 13 SASR 4; Donald Campbell & Co v Pollak (1927) AC 732. Consequently, one must look at the circumstances of each case to determine whether the judicial discretion should be exercised as an exception to the general rule. The general rule is that costs follow the event, and a successful litigant will receive their costs in the absence of circumstances justifying some other order.

4. Costs are not ordered by way of punishment of the unsuccessful party.  In the ordinary case, they are to compensate the successful party for the expense to which he or she has been put by reason of the legal proceedings: Cilli v Abbott (1981) 53 FLR 108 at 111; Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543, Toohey J at 562-3 and McHugh J at 567.

5. In this case, I consider that a fair and just order concerning costs is that there be no order as to costs. 

6. Notwithstanding the lack of success by Dr Yusuf, there are a number of reasons connected with the case which almost demand that there be no award of costs in the respondent’s favour.  The primary one is the need to reflect my profound disapproval of the conduct of officers of the respondent in relation to the circumstances directly leading to the cancellation of Dr Yusuf’s visa.  The withdrawal of sponsorship by One-Stop Medical Services was communicated, in secret, to the Department of Immigration and Multicultural Affairs (“the Department”) without any indication to Dr Yusuf.  Dr Yusuf was delivered by One-Stop Medical Services to the Department for his visa to be cancelled, as in a tumbrel for his execution.  The cancellation of Dr Yusuf’s visa, without providing him with any opportunity at all to find alternative sponsorship, was a predetermined farce of due process.  The opportunity of merits review to the Migration Review Tribunal of the decision to cancel his visa was to all intents and purposes illusory, having regard to the time limit of two days within which to lodge such an application (which time could not be extended), and with payment of the application fee (but subject to the possibility of waiver) in circumstances where Dr Yusuf was without funds, and had been subjected to a grave injustice of breathtaking arrogance.

7. In my reasons of 6 September 2002, I said at pars [32] to [33]:

   “It is apparent from what I have said above that, in my view, Dr Yusuf has been treated very shabbily. I sought information from the legal representatives of the respondent whether, in the circumstances of the present case, the respondent had a power similar to that contained in s 417 of the Act, so that something might be done to ameliorate or rectify the profound unfairness in the case. I have been informed that no such power exists in the Act or in the Regulations. Such powers are given in s 351 in respect of Migration Review Tribunal decisions; s 391 in respect of the decisions of the Administrative Appeals Tribunal reviewing Migration Review Tribunal decisions; s 454 in respect of decisions of the Administrative Appeals Tribunal reviewing Refugee Review Tribunal decisions; and s 495B in respect of computer-based decisions.

   In those cases, where the respondent substitutes a more favourable decision under any of those sections, he must comply with certain requirements as outlined in the relevant sections in respect of laying certain information before each House of the Parliament.  I have been informed that it is not possible for the respondent to substitute a more favourable decision in this case.  The matter, however, is one which should be brought to the attention of the Minister for Immigration and Multicultural and Indigenous Affairs for his personal consideration.”

8. As Dawson J noted in his dissenting judgment in Latoudis v Casey (supra) at 557:

   “After the Judicature Acts, all costs were within the discretion of the court.  By rule it was provided in England that in civil jury trials costs followed the event unless the court should for good cause order otherwise.  In non-jury cases the costs were left to the discretion of the court.  Whilst the discretion was absolute and unfettered, it was to be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation.”  (Emphasis added)

9. The tawdry, “kangaroo court” approach to the cancellation of Dr Yusuf’s visa, in connivance with Dr Yusuf’s erstwhile sponsor, screamed out for lawful redress.  While that redress was not able to be given by this Court, the circumstances leading to the making of the application in this Court are, in my judgment, highly relevant to the question of whether it is just and reasonable to order Dr Yusuf to pay the respondent’s costs.

10. It is also relevant to that question to consider the actual conduct of the litigation, focusing particularly on the conduct of the respondent.  On 21 August 2002, the day before the hearing of Dr Yusuf’s application, the respondent forwarded to the solicitors acting for Dr Yusuf an affidavit of Sue Ellen Delahunt sworn 21 August 2002 in which she deposed in the penultimate paragraph:

    “At no stage did I detain Mr Yusuf in questioning detention pursuant to s 192 of the Migration Act 1958 …”

11. The position is that at no time other than shortly prior to the communication of this affidavit to Dr Yusuf’s solicitors, and in particular at no stage in the respondent’s submissions on the motion for competency or during the hearing of that motion, was it submitted by the respondent that no decision to place in questioning detention had in fact been made.  The respondent’s written submissions on the competency hearing were predicated upon an assumption that a decision to hold Dr Yusuf in questioning detention had been made by an officer of the Department. 

12. The fact is that until the day before the hearing, the respondent had been in possession of Dr Yusuf’s material and, in particular, Dr Yusuf’s account in respect of this issue, yet both at the time of the hearing of the objection to competency and until the day before the substantive hearing, it was not the case of the respondent that no decision had been made pursuant to s 192 of the Migration Act 1958 (Cth). It was on this ground that the respondent succeeded. Even at the substantive hearing, it was submitted in the alternative that “… there was evidence upon which the delegate could reasonably suspect that the applicant might attempt to evade the officer or not co-operate” if not held in questioning detention. This alternative submission was consistent only with there in fact having been a s 192 detention of Dr Yusuf. In Ritter v Godfrey [1920] 2 KB 47, Atkin LJ reviewed “… cases where costs follow the event, unless the judge thinks there is good cause”, and said at 60:

    “In the case of a wholly successful defendant, in my opinion the judge must give the defendant his costs unless there is evidence that the defendant (1) brought about the litigation, or (2) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains.”

    Both the second and third matters to which Atkin LJ referred apply, in my opinion, in this present case.

13. If ever there was a case to deny a successful respondent the costs of an application, this is it. The function of the Court is to deliver justice according to law. In carrying out that function, I exercise the discretion conferred by s 43(2) of the Act by ordering that there be no order as to costs

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:             20 December 2002

Counsel for the Applicant:	Mr I. Hanger, QC with Mr I. Erskine
Solicitor for the Applicant:	Gateway Lawyers
Counsel for the Respondent:	Ms E. Ford
Solicitor for the Respondent:	Blake Dawson Waldron
Dates of Submissions:	13 September 2002; 20 September 2002; 27 September 2002
Date of Judgment:	20 December 2002