FEDERAL COURT OF AUSTRALIA

QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1644

QAAH OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q 102 OF 2004

DOWSETT J

14 DECEMBER 2004

BRISBANE

REASONS FOR JUDGMENT

1                     When judgment was delivered in this matter, counsel for the applicant asked that the costs order be stayed so that he could make submissions as to costs.  I directed that the orders not be taken out until further notice in order to allow such submissions.  Having read those submissions I am of the opinion that there is no justification for varying the order made in the judgment.  They may now be taken out.

2                     There is no presumption that an unsuccessful party must pay the successful party’s costs.  However there are policy reasons for not allowing a party to litigate free of the risk of a costs order in the event that he or she is unsuccessful.  The discretion to award costs must be exercised having regard to the circumstances of the case. 

3                     The applicant submits that this case involved both a novel question of law and a matter of “high public importance”.  Such a submission was considered in Cabal v United Mexican States (No 6) (2000) 174 ALR 747, Nouredine v Minister for Immigration & Multicultural Affairs [1999] FCA 1130, Chaldargushi v Minister for Immigration & Ethnic Affairs [1999] FCA 1048 and Ruddock v Vadarlis (No. 2) (2001) 115 FCR 229.

4                     When the outcome of a case is unpredictable, it may seem unfortunate that the unsuccessful party should have to bear the costs of the other party or parties.  It may also be so when one side fails because the court has overruled, or refused to follow an earlier decision.  Nonetheless the risk of an unfavourable costs order is, in practice, an important deterrent to unmeritorious or adventurous litigation.  Further, if it seems unfortunate that an unsuccessful party should bear the costs of the successful party, it seems even more unfortunate that a successful party should be left to bear the cost of having vindicated its position.

5                     We should not encourage litigants to pursue their own views concerning the public interest.  That is primarily, but not exclusively, the role of government agencies, including the Attorney-General.  On the other hand, we should not discourage citizens from pursuing their individual rights.  The view that costs should usually follow the event reflects well-established perceptions as to a reasonable balance between these two considerations.

6                     Although the present case may make some contribution to the development of the law, as much may be said of many cases.  I am confident that the proper order in the present case is that the applicant pay the respondent’s costs of the application.

7                     Perhaps an applicant who intends to submit that he or she should not, if unsuccessful, bear the other party’s costs, should raise the matter at an early stage.  All parties may then be able more effectively to assess their attitudes to the litigation.

Associate:

Dated:              14 December 2004