FEDERAL COURT OF AUSTRALIA

Saini v Minister for Immigration and Border Protection (No. 2) [2016] FCA 870

ORDERS

THE COURT ORDERS THAT:

1.    The appellants pay the first respondent’s costs of an incidental to the appeal, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Upon the pronouncement of judgment dismissing the appeal (Saini v Minister for Immigration and Border Protection [2016] FCA 858), the Minister sought an order for costs on the basis that costs, in the ordinary course, as a matter of discretion, follow the event.

2    The discretion in respect of costs is, of course, unfettered, but it is one which must be exercised judicially. And in the ordinary course of events a judicial exercise of the discretion does indeed entail the making of an order that costs follow the event. On behalf of the appellants, it was submitted that the appeal served to resolve a conflict of authority in the Federal Circuit Court, which had become apparent in respect of the construction of the Migration Regulation item in question. That was in support of the further submission that the appeal had therefore not just served only the interests of the appellant, but also a wider public interest.

3    I accept that this is a relevant consideration in relation to the exercise of a costs discretion. Further, the regulation is one which is likely to arise for construction and application quite often. Accepting all that, the view that I have nonetheless, is that the case is one where, an order for costs having been sought by the Minister, an order should be made in the Minister’s favour on the ordinary basis of costs following the event.

Associate:

Dated:    5 August 2016