FEDERAL COURT OF AUSTRALIA

Fernando v Minister for Immigration and Citizenship (No 6) [2008] FCA 1954

WANNAKUWATTEMITIWADUGE LLOYD NIRMALEEN FERNANDO v MINISTER FOR IMMIGRATION AND CITIZENSHIP

WAD 103 of 2007

SIOPIS J

19 DECEMBER 2008

PERTH

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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.
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on appeal from the federal magistrates court of australia

REASONS FOR JUDGMENT

1                     On 13 August 2008, I dismissed Mr Fernando’s appeal against the decision of the Federal Magistrate which held that the Federal Magistrates Court had no jurisdiction to consider his claim for compensation for what he referred to as his “unlawful detention” in migration detention (Fernando v Minister for Immigration and Citizenship (No 3) [2008] FCA 1217).  I said that I would hear the parties on costs.

2                     The respondent contended that the costs should be paid by the appellant.  Such an order would, so the respondent contended, have the effect of rendering the appellant’s tutor, Mr John Robert Broderick Ley, personally liable to pay the costs with an indemnity from the appellant.  The respondent contended that there were no special circumstances in this case which would preclude the Court from, in the exercise of its discretion, applying the usual rule on the question of costs, namely, that costs would follow the event.

3                     In the case of Fernando v Minister for Immigration and Citizenship (No 5) [2008] FCA 1953 (Fernando (No 5)), I considered an argument to like effect in relation to application WAD 123 of 2007.  That case was another proceeding which Mr Fernando commenced whilst he was unrepresented and before the Court appointed Mr Ley to act as Mr Fernando’s tutor.

4                     In Fernando (No 5) I identified a number of factors that were relevant considerations in relation to the question of costs.  In considering the question of costs in this matter, the same factors as were described at [7] and at [8]‑[11] of my reasons in Fernando (No 5) are germane to this proceeding and I take those factors into account.

5                     In addition, I take into account the following circumstances.  In this case, after Mr Ley was appointed as tutor, he reviewed the proceeding and advised the Court and the respondent that he did not intend to further pursue the proceeding.  The reason why the matter came before the Court after Mr Ley had advised of his decision not to pursue this proceeding was because Mr Ley was concerned about the potential consequences of discontinuing the proceeding without having obtained an order of the Court approving that course of conduct.  The issue which then arose was whether the appropriate course was for the proceeding to be stayed or dismissed.  It is apparent, therefore, that by reason of Mr Ley’s decision not to continue to prosecute this proceeding the respondent has been relieved of the need to deploy the resources and expend the public monies in the defence of the proceeding, which he would otherwise have been required to deploy and expend.

6                     In weighing the factors that I have identified above, in my view, the factors referred to at [8]‑[11] of Fernando (5) and at [5] above, outweigh the factors referred to at [7] of Fernando (5) and, in my view, the appropriate order should be that there be no order as to costs.

Associate:

Dated:         19 December 2008