Seevarajah Selliah v Minister for Immigration & Multicultural Affairs [1998] FCA 469 (5 May 1998)

Last Updated: 11 May 1998

FEDERAL COURT OF AUSTRALIA

COSTS - application to review decision of Tribunal affirming decision not to grant protection visa dismissed - whether court should make award of costs against unsuccessful applicant - whether public interest considerations applicable - whether special circumstances - whether order would be futile.

Federal Court of Australia Act 1976 (Cth), s 43

Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40-748, followed

Puddy v Borg [1973] VR 626, followed

De Silva v Minister for Immigration and Multicultural Affairs (Merkel J, Federal Court of Australia, 31 March 1998, unreported), followed

Oshlack v Richmond River Council [1998] HCA 11, applied

SEEVARAJAH SELLIAH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 471 of 1997

R D NICHOLSON J

PERTH (HEARD IN MELBOURNE)

5 MAY 1998

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 471 of 1997

BETWEEN:	SEEVARAJAH SELLIAH Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	R D NICHOLSON
DATE OF ORDER:	5 may 1998
WHERE MADE:	perth (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

The applicant pay the respondent's costs of the proceeding including any reserved costs and the costs of submissions as to costs.

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

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 471 of 1997

BETWEEN:	SEEVARAJAH SELLIAH Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	R D NICHOLSON
DATE:	5 MAY 1998
PLACE:	perth (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT ON COSTS

HIS HONOUR: On 24 April 1998 I ordered the application in this matter be dismissed and costs be reserved for submissions.

It is common ground the Court has a discretion whether to make an order as to costs and that such discretion is unfettered although it must be exercised judicially so as to achieve what is fair and just between the parties according to the circumstances of the particular case: Federal Court of Australia Act 1976 (Cth) s 43; Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40-748; Puddy v Borg [1973] VR 626 at 628. It is accepted while there is no rule that costs follow the event, ordinarily in the Federal Court costs do so: Gladstone Park and Anor v Wills and Anor [1984] FCA 166; (1984) 59 ALR 109. In short, the position is as stated in De Silva v Minister for Immigration and Multicultural Affairs (Merkel J, Federal Court of Australia, 31 March 1998, unreported) where he said (at 1-2):

"It is well established that the Court has an absolute and unfettered discretion to make orders as to costs but the discretion must be exercised judicially. In some cases the Court may be justified in departing from the usual orders in relation to costs when the justice of the case so requires because of a "special or unusual" feature: see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 733; or because of "exceptional or special" circumstances: Oshlack v Richmond River Council [1998] HCA 11 at paras 135 and 143 per Kirby J. In Oshlack it was accepted by Gaudron and Gummow JJ at para 35 that the `general rule' is that:

`a wholly successful defendant should receive his costs unless good reason is shown to the contrary.'

See also McHugh J at pars 66-67 and Kirby J at par 134.

The "usual order" is that costs follow the event: Oshlack per Brennan CJ and McHugh J at pars 3 and 66-67, Gaudron and Gummow JJ at par 35 and Kirby J at par 134.

For the applicant it is submitted "special circumstances" exist in the present case because the application raised factors important to the public interest. These are said to be the need for the Court to determine whether the Tribunal correctly applied the criterion found in s 36(2) of the Migration Act 1958 (Cth) ("the Act") and whether its procedures were fair and just as required by s 420(1) of the Act. It is conceded for the applicant the mere fact an applicant seeks review of an administrative decision does not of itself create sufficiently special circumstances to warrant no order as to costs. However, it is submitted the position is different where one of the issues raised and pursued by an applicant is the obligation of a Minister under an International Convention. That is said to necessarily give rise to the existence of a public interest element.

In relation to a similar submission Merkel J in De Silva said (at 2-3):

"The applicants contended that their proceeding is "public interest litigation". In Oshlack a judge of the Land and Environment Court of New South Wales in reliance on a "public interest litigation" ground made no order as to costs against an unsuccessful applicant for relief in relation to a development application. The High Court considered whether the concept of "public interest litigation" justified the approach taken. McHugh J (with whom Brennan CJ agreed) said that there is "inherent imprecision in the suggested concept of `public interest litigation' ". Gaudron and Gummow JJ described it as "a `nebulous concept' unless given ... further content of a legally normative nature." See also Kirby J at [135]. Their Honours did not find that the concept of `public interest litigation" offered any assistance in resolving the real issues in the case. McHugh J, with whom Brennan CJ agreed, said that "... the fact that the proceeding can be characterised as public interest litigation is irrelevant to the question whether the court should depart from the usual order that costs follow the event" (at para 51). Gaudron and Gummow JJ described the true issue in the case as being not whether the litigation was "public interest litigation" but whether, in view of the subject matter, scope and purpose of the statutory provision which conferred the general costs discretion in that case, the reasons given by the primary judge for declining to make an order as to costs were "definitely extraneous to any objects the legislature could have had in view".

McHugh J observed (at par 65) that:

"Although the statutory discretion is broadly stated, it is not unqualified. It clearly cannot be exercised capriciously. Importantly, the discretion must be exercised judicially in accordance with established principle and factors directly connected with the litigation." (footnotes omitted).

See also Kirby J at par 134."

Like Merkel J, I do not here accept there are any public interest considerations which would justify departure from the usual order and principle that costs are generally awarded to indemnify a successful party in litigation: see Oshlack per Brennan CJ at [1], McHugh J at [67], Kirby J at [143]. A proceeding was not brought by the applicant for the benefit of the public or to enforce a public duty. Rather it was brought to enable him to remain in Australia. The factual substratum to sustain these submissions and raise a public interest ground is entirely absent.

However, the applicant seeks to sustain the public interest ground on one additional feature of the case, namely that it involved a determination of whether the Tribunal had failed to conduct the hearing in "private" as required by s 429 of the Act. It is submitted this was novel to the extent there were no other reported cases considering the meaning of "private" in that section or the larger question of whether the Tribunal may hear evidence of witnesses relevant to more than one applicant. It is therefore submitted this issue is of exceptional public interest.

The issue of whether the Tribunal had conducted the hearing in "private" was not central to the proceeding. It was determined there was no breach of the requirement of s 429, no complaint having been made at the hearing and there being no evidence to show how or if at all the applicant's privacy had been violated. Consequently no general principles of law were established. The matter was raised in the interests of the applicant and not as a general principle of law. It does not sustain the public interest argument.

Finally, it is contended for the applicant that as he has been in detention since arriving in Australia he has no assets in this country, an order against him would be futile. No evidentiary foundation exists for a finding of futility. Even if the proper inference to be drawn from the applicant's detention is that such an order would be futile, I do not consider that would amount to special circumstances warranting the making of a different order. Here the applicant chose to comprehensively argue his case and expose himself to the risk of costs. Having failed, any futility of collection is not a reason for an order to the contrary.

For these reasons I consider the applicant should be ordered to pay the respondent's cost of the proceeding including any reserved costs and the costs of submissions as to costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON

Associate:

Dated: 5 May 1998

Submissions for the Applicant:	Wisewoulds
Solicitor for the Applicant:	Wisewoulds
Submissions for the Respondent:	G Turnbull
Solicitor for the Respondent:	Australian Government Solicitor
Date of Submissions:	28 and 29 April 1998
Date of Judgment:	5 May 1998