FEDERAL COURT OF AUSTRALIA

NAOX v Minister for Immigration and Citizenship (No 2) [2009] FCA 1264

COSTS – power of Court to order costs – whether the Court has power to award costs in respect of proceedings in the Refugee Review Tribunal from which an application for Constitutional writs was made – s 43 of the Federal Court of Australia Act 1976 (Cth) vests in the Court only jurisdiction to award costs in proceedings before the Court – no power to award costs in respect of proceedings in the Refugee Review Tribunal

Federal Court of Australia Act 1976 (Cth)s 43

Federal Court Rules O 62 rr3, 5

Migration Act 1958 (Cth) ss 276, 277, 281, 476(1)

Dutton v Republic of South Africa(1999) 162 ALR 625 applied

Dutton v Republic of South Africa (1999) 92 FCR 575 cited

NAOX and SZFSG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1795 of 2008

SPENDER J

6 NOVEMBER 2009

BRISBANE

THE COURT DECLARES THAT:

1.                  The Federal Court of Australia, on an appeal to it from a decision of the Federal Magistrates Court, has no power to award costs in respect of proceedings in the Refugee Review Tribunal, from which an application for constitutional writs was made to the Federal Magistrates Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     On 18 September 2009, I made the following orders in these proceedings:

1.                  The appeal is allowed.

2.                  The matter is remitted to the Refugee Review Tribunal, differently constituted, to be heard according to law.

3.                  The first respondent pay the costs of the appellants of the appeal, to be taxed if not agreed.

2                     Counsel on behalf of the appellants indicated that the appellants, in addition to the costs order pronounced on 18 September 2009, also sought an order that the first respondent pay the costs of the proceedings before the Refugee Review Tribunal (the Tribunal) on the third occasion on which this matter was before it.

3                     In consequence of that application, I made the following directions:

1.         The appellants file and serve any submissions they wish to make concerning the costs of the proceeding before the Refugee Review Tribunal on the third occasion, within 14 days.

2.         The first respondent file and serve any submissions in response it wishes to make, within a further 14 days.

3.         The Court will then consider this aspect of the matter on the papers, and then give judgment.

4                     The submissions by the appellants as to the making of an order for costs which extends beyond ordering the first respondent to pay the costs of their appeal, argue that the appellants had incurred costs in being assisted before the Tribunal on the third occasion, and costs in responding to written requests for information by the third Tribunal, and will, as a result of the judgment pronounced on 18 September 2009, be faced with the prospect of funding their assistance before the Refugee Review Tribunal on a fourth occasion.

5                     The appellants successful appeal to the Federal Court was based on a finding by the Court that the decision which the Tribunal reached had not been made bona fide.

6                     The submissions on behalf of the appellants acknowledge that under ss 276, 277 and 281 of the Migration Act 1958 (Cth) only a migration agent can charge for advising on, preparing for, or representing a person before a hearing of the Tribunal.   The submission advanced by the appellants is that it is therefore “just, fair and equitable” that the respondents be ordered to pay the costs of the appellants of their migration agent of and incidental to the proceedings before the Tribunal on the third occasion that the matter was before it, and the respondents should be so ordered.

7                     As the appellants’ submissions demonstrate, their claim for a costs order in relation to the proceedings before the third Tribunal is founded entirely on considerations of  what is said to be “fair” and “right”, considerations redolent of what can be characterised as “palm tree” justice.

8                     The power in the Federal Court to award costs is contained in s 43 of the Federal Court of Australia Act 1976 (Cth), and O 62 rr 3 and 5 of the Federal Court Rules. 

9                     Section 43 of the Federal Court of Australia Act vests in the Court or a Judge “jurisdiction to award costs in all proceedings before the Court”.  The proceeding before the Court in the present case was an appeal from the Federal Magistrates Court by way of rehearing. 

10                  Pursuant to s 476(1) of the Migration Act, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. That jurisdiction allows for orders by way of mandamus, prohibition or certiorari. 

11                  The review of the administrative processes constituting the application in the Federal Magistrates Court for constitutional writs is not a proceeding in the Federal Court.  In my judgment, it follows that the Court does not have power to compensate an applicant for losses incurred in the administrative processes which were reviewed by the Federal Magistrates Court, and from which an appeal was made to the Federal Court of Australia. 

12                  The Court simply does not have jurisdiction to make the orders sought by the appellants.  No authority has been cited to support a conclusion that the Court has power to make such an order.

13                  The fundamental character of a costs order is to indemnify a party for their legal costs and disbursements of the proceeding.  A costs order is not directed at indemnifying a person in respect of any amounts which relate to the dispute which give rise to the proceeding.

14                  Branson J, in Dutton v Republic of South Africa (1999) 162 ALR 625, rejected the contention that the Court’s power in s 43 of the Act empowered her to make an order that the Commonwealth pay the applicant’s costs of an extradition proceeding which had been reviewed by the Court.  Her Honour also rejected the contention that there was some broader jurisdiction in the Court to remedy injustice by the making of such an order.  Her Honour’s decision was upheld by the Full Court in Dutton v Republic of South Africa (1999) 92 FCR 575. 

15                  The following observations by her Honour apply directly in the present case: 

[37]      The applicant called in aid s 43 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) and O 62, rr 3 and 5 of the Federal Court Rules.  Section 43 of the Federal Court Act vests in the court or a judge “jurisdiction to award costs in all proceedings before the Court”.  The extradition proceeding before the magistrate was not a “proceeding before the Court” within the meaning of s 43 of the Federal Court Act.  This situation did not alter when an application was made to this court … for review of the order made by the magistrate.  Section 43 of the Federal Court Act does not provide a legislative base for a claim for the costs of the failed extradition proceeding.  Order 62, rr 3 and 5 of the Federal Court Rules do not expand the jurisdiction of the court to award costs, they merely regulate the exercise of the jurisdiction.

…

[39]      Nor am I able to accept that this court has an inherent or implied power to alleviate injustice or potential prejudice caused to a successful respondent in an extradition proceeding.  This court has only such original jurisdiction as is vested in it by laws made by the parliament: s 19 of the Federal Court Act.  While the vesting of judicial power in the court in respect of specific matters, as permitted by the Constitution, carries with it such implied power as is necessarily inherent in the nature of the judicial power itself (Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 619; 71 ALR 457) the court is nonetheless a court of limited jurisdiction.  It does not have an “inherent jurisdiction”: Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at 139; 144 ALR 42 at 69.

16                  Any costs incurred by the appellants in respect of the third Tribunal hearing were not incurred in respect of a proceeding in the Federal Court of Australia.

17                  Counsel for the first respondent makes the valid point that if the appellants’ argument were to be accepted, it would mean that an unsuccessful party before the Tribunal would have an ability to recover their costs of representation through an appeal to the Federal Magistrates Court or the Federal Court, but a successful party would have no means of recovering their costs before the Tribunal.

18                  For the above reasons, in my judgment, the Court has no power pursuant to s 43 of the Federal Court of Australia Act to make an order for costs in respect of proceedings incurred in an administrative process which has been the subject of an application for constitutional writs to the Federal Magistrates Court, and then on appeal from the Federal Magistrates Court to the Federal Court of Australia.

Associate:  

Dated:         6 November 2009