FEDERAL COURT OF AUSTRALIA

Yilan v Minister for Immigration and Multicultural Affairs

[1999] FCA 1212

PRACTICE AND PROCEDURE – costs – whether successful respondent should be deprived of costs

Holden & Co v Crown Prosecution Service (No 2) [1994] 1 AC 22 cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 cited

Minister for Immigration and Multicultural Affairs v Zamora [1998] FCA 1170 applied

Oshlack v Richmond River Council (1998) 152 ALR 83 applied

CIGDEM YILAN  V  THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 203 OF 1998

JUDGES:       FRENCH, R.D. NICHOLSON AND FINKELSTEIN JJ

DATE:            3 SEPTEMBER 1999

PLACE:          MELBOURNE

THE COURT ORDERS THAT:

The appellant pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1                     When we handed down our decision dismissing the appeal, we reserved consideration of the costs of the appeal pending submissions from the parties.  The appeal was brought by Ms Yilan from the decision of O’Connor J refusing to set aside the determination by the Refugee Review Tribunal that Ms Yilan did not satisfy the criteria for the grant of a protection visa.

2                     In her written submissions, Ms Yilan put forward two reasons why the usual costs order should not be made.  First, she points to the fact that her failure on the appeal was to a substantial extent the result of the decision by the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, a decision that was handed down after the argument on the appeal had concluded.  The second point she makes is that she is impecunious and could not satisfy any costs order.

3                     We are satisfied that neither ground constitutes “good reason” (to adopt the language of the High Court in Oshlack v Richmond River Council (1998) 152 ALR 83) why the Minister should not recover his costs.  Whilst there may often be reason to deny a successful party his or her costs of a first instance application for judicial review (in England costs are not awarded in such proceedings:  see Holden & Co v Crown Prosecution Service (No 2) [1994] 1 AC 22 at 40) there will not often be good reason in relation to an appeal that has been fully contested on the merits. 

4                     With regard to Eshetu, we do not accept that when a point of law has been clarified by the High Court after argument, but before judgment in a lower court, the unsuccessful party in the lower court should be relieved from his obligation to pay costs.  In principle, we do not see this to be any different from a ruling against a party by the lower court in the absence of a binding precedent.

5                     As to the inability to meet a costs order, this has never been a sufficient reason to deny a successful party his or her costs, special reasons apart:  see Minister for Immigration and Multicultural Affairs v Zamora [1998] FCA 1170.  There are no special reasons here. 

6                     The order will be that Ms Yilan pay the Minister’s costs of the appeal.

Associate:

Dated:              3 September 1999