FEDERAL COURT OF AUSTRALIA

Weng v Minister for Immigration and Citizenship (No 3) [2011] FCA 654

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    A writ of certiorari issue to quash the decision of the second respondent made on 29 January 2010.

3.    A writ of mandamus issue directing the second respondent to consider the application according to law.

4.    A writ of prohibition issue restraining the first respondent from acting, or giving effect to the decision made by the second respondent on 29 January 2010.

5.    The first respondent do pay two-thirds of the appellant’s costs of the appeal to be taxed or agreed.

6.    All other costs orders in this appeal and in the Federal Magistrates Court do stand.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1    In Weng v Minister for Immigration and Citizenship (No 2) [2011] FCA 444 I indicated I would allow a new ground of appeal as advanced by the appellant (Mr Weng). The new ground was added by amendment made at the hearing of the appeal on 2 March 2011. It had not been raised in the Federal Magistrates Court. The other grounds of appeal were dismissed. In giving judgment I made directions that the parties file written submissions as to relief and costs.

RELIEF

2    The parties are agreed that the relief consequent upon the appeal being allowed and independent of any costs order should be:

(a)    The appeal be allowed.

(b)    A writ of certiorari issue bringing the second respondent’s decision into this Court to be quashed.

(c)    A writ of mandamus issue directing the second respondent to consider the application according to law.

(d)    A writ of prohibition do issue restraining the first respondent from acting, or giving effect to the decision made by the second respondent on 29 January 2010.

3    Those orders will be made.

COSTS

4    The first respondent (the Minister) made the point that Mr Weng was represented on the application for review at first instance as well as on appeal. Grounds 1-4, which were advanced in this appeal, were also advanced at first instance and all failed. That being so, there should be no basis on which Mr Weng should be permitted to disturb the costs order in the Federal Magistrates Court given that all the grounds he chose to run, on advice, were unsuccessful.

5    The hearing of the appeal was originally listed for 18 November 2010 but was vacated on the application of Mr Weng. In that hearing, orders were made for Mr Weng to pay the Minister’s costs thrown away including costs of the directions hearing. At present, the Minister is entitled to the benefit of that costs order.

6    On the appeal itself, as indicated, only one ground of the five succeeded. This ground was raised with the Minister for the first time on 24 February 2011, less than a week prior to the hearing, when written submissions in support of the appeal were served along with a proposed amended notice of appeal. The Minister submits that until that point when the new ground was added, the appeal was doomed to fail given the outcome on the existing grounds of appeal 1-4.

7    Given the belatedness with which ground 5 was raised and the fact that Mr Weng ultimately succeeded on only one of the five grounds of appeal argued, the Minister submits that the Court would be entirely justified in ordering that there be no order as to costs of the appeal, leaving in place the earlier costs order in the Minister’s favour and the original costs order below.

8    Nevertheless, the Minister accepts that on the basis that Mr Weng has succeeded on the new ground not argued below, an appropriate outcome on the issue of costs would be for the Court to:

    set aside the costs order made below;

    order that each party pay his own costs of the proceeding below; and

    vacate the earlier costs order made in the Minister’s favour on 18 November 2010.

9    On the basis that those two orders would allow Mr Weng costs benefits (costs that he would not otherwise be entitled to) and that those benefits would adequately compensate him for ‘such limited success’ as he has had on appeal, it is argued that there should otherwise be no order as to costs of the appeal. This, it is said, would have the additional benefit of avoiding the need for taxation of costs.

10    Alternatively, the Minister argues that the original costs order below should stand (being in favour of the Minister), the costs order of 18 November 2010 in favour of the Minister should stand and any order made in favour of Mr Weng in terms of the costs of the appeal should be for no more than one-third of his costs of the appeal. The amount would reflect the ‘limited nature of the success’ and the relation between the work done on the appeal and the sole ground on which he succeeded, given the belatedness with which the ground was raised.

11    Mr Weng, however, says that the usual practice should apply. Costs should follow the event. The Court should be reluctant to engage the approach of apportionment for reasons explained by Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 (at 12) which has been followed on a number of occasions by this Court (see, for example, Cummings v Lewis (1993) 41 FCR 559 (at 602-603) and Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 (at [53])).

CONSIDERATION

12    It may be proper to engage in a process of apportionment of costs depending on success or failure on separate issues: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2007] FCAFC 119 (at [11]).

13    Relevant factors going to the exercise of the costs discretion in the appeal are:

(a)    Mr Weng was successful in arguing that the Tribunal had committed jurisdictional error;

(b)    The success was obtained on a ground raised late in an appeal and not raised in the Court below;

(c)    The Minister consented to the ground being raised for the first time (subject to costs thrown away); and

(d)    The appeal took no longer than the half day in respect of which it was originally listed.

14    Mr Weng accepts that the costs order made in favour of the Minister in the Court below should not be disturbed. He argues that, as to the appeal, the Minister should pay Mr Weng’s costs of the appeal save for those costs thrown away by the amendment to the notice of appeal made by leave granted on 2 March 2011. It is contended that these orders will preserve the interlocutory costs order made in favour of the Minister on adjournment of the appeal and will protect the Minister from any prejudice suffered by the late amendment to the notice of appeal.

15    In my view, the appropriate approach is to recognise that the costs order in the Federal Magistrates Court should not be disturbed as the new ground of appeal was not raised in that appeal. Further, there is no reason for adjustment of any order made in favour of the Minister with regard to costs of the adjourned hearing and costs thrown away by reason of the amendment.

16    On the appeal itself, although four out of five of the grounds did not succeed, I consider that Mr Weng should be entitled to two-thirds of his costs.

17    My reasoning for this is that although only one of the five grounds succeeded, clearly the new ground was advanced as the primary ground and more time and emphasis was devoted to it than to any other, possibly even more than on all the other grounds put together. I do not consider that the other grounds, whilst unsuccessful, were wasteful, pointless or unarguable. It was simply that I preferred the Minister’s arguments on those grounds. It is an appropriate case, nevertheless, for some discount of the costs in favour of Mr Weng but not to the extent of two-thirds as suggested by the Minister.

18    It is entirely open to the parties to negotiate the sorts of set-off to which the Minister has helpfully referred. But in the absence of detailed understanding as to the sums involved, I consider it is better that such balancing exercises are dealt with by sensible negotiation between the parties rather than by disturbing orders already made. For completeness, I would emphasise that as acknowledged by Mr Weng, while he succeeds on the new ground (alone), there is no basis for disturbing the costs order in favour of the Minister in the Federal Magistrates Court.

19    The orders will be:

1.    The appeal be allowed.

2.    A writ of certiorari issue to quash the decision of the second respondent made on 29 January 2010.

3.    A writ of mandamus issue directing the second respondent to consider the application according to law.

4.    A writ of prohibition issue restraining the first respondent from acting, or giving effect to the decision made by the second respondent on 29 January 2010.

5.    The first respondent do pay two-thirds of the appellant’s costs of the appeal to be taxed or agreed.

6.    All other costs orders in this appeal and in the Federal Magistrates Court do stand.

Associate:

Dated:    9 June 2011