FEDERAL COURT OF AUSTRALIA

Applicants S1266 of 2003 v Minister for Immigration & Multicultural Affairs (No 2)

[2007] FCA 2

APPLICANTS S1266 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 582 OF 2006

BENNETT J

12 january 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  There be no order as to costs.

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

REASONS FOR JUDGMENT

1                                             The appellants succeeded on a basis raised by the Court after the hearing (Applicants S1266 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1771 at [35] to [52]).  That basis was first raised with the parties on 5 December 2006 and further written submissions were provided by the appellants and the Minister.  All other grounds of appeal advanced by the appellants at the hearing were rejected.

2                                             The appellants submit that an appropriate order for costs is that the Minister pay the appellants’ costs or, in the alternative, a proportion of those costs.  The basis of this submission is that, even if the successful ground had been raised initially, there would have been a hearing and written submissions in any event.  The appellants also submit that the costs orders made by the Federal Magistrate should be set aside (Applicants S1266/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 335).  They submit that the Minister should pay a part of the appellants’ costs in the Federal Magistrates Court or, in the alternative, that each party bear his or her own costs.

3                                             The Minister points out that the grounds raised in the notice of appeal and amended notice of appeal in this Court were rejected in their entirety.  She submits that apportionment is appropriate and that the appellants should bear the expense of both parties in litigating that portion on which they have failed.  In circumstances where all the appellants’ claims have failed but the appeal was allowed on a ground raised by the Court, the Minister submits that there should be no order as to costs.

4                                             If there were to be apportionment, each of the appellant and the Minister would be entitled to a portion of the costs:  the Minister for the litigation of the unsuccessful grounds of appeal, the appellant for the institution of the appeal and the appearance and submissions in respect of the successful ground.  In the circumstances, it is appropriate that there be no order as to costs in respect of the appeal to this Court.  Further, in circumstances where the successful ground was not raised before the Federal Magistrate, I will not vary the costs order in that court.

Associate:

Dated:         12 January 2007