IN THE FEDERAL COURT OF AUSTRALTA AUSTRALIAN CAPITAL TERRITORY ) ) ) ) No. ACT G16 of 1983 DISTRICT REGISTRY ) ) ) GENERAL DIVISION IN THE MATTER of an appeal from a single judge of the Federal Court of Australia in which the Minister for Immigration and Ethnic Affairs was the appellant and Gitsadawan Gaillard was the respondent AND IN THE MATTER of an application by Gitsadawan Gaillard under the Federal Proceedings (Costs) Act 1981 ORDER JUDGE MAKING ORDER: Neaves J DATE OF ORDER: 18 October 1983 WHERE MADE: Canberra THE COURT GRANTS to the applicant, Gitsadawan Gaillard, a certificate in terms of section 6 of the Federal Proceed- ings (Costs) Act 1981 that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the applicant in respect of - (a) the costs incurred by the applicant in relation to the appeal to the Full Court of this Court in matter numbered ACT G16 of 1983 in which the v (b) Minister for Immigration and Ethnic Affairs was the appellant and the applicant was the respondent and in which judgment was given on 29 August 1983; and the costs incurred by the appellant, the Minister for Immigration and Ethnic Affairs, in relation to that appeal that have been, or are required to be, paid by the applicant to the said appellant in pursuance of the order of this Court made in the said appeal on 29 August 1983. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) No. ACT G16 of 1983 ) ) ) GENERAL DIVISION IN THE MATTER of an appeal from a single judge of the Federal Court of Australia in which the Minister for Immigration and Ethnic Affairs was the appellant and Gitsadawan Gaillard was the respondent AND IN THE MATTER of an application by Gitsadawan Gaillard under the Federal Proceedings (Costs) Act 1981 CORAM: Neaves J. DATE: IS October 1983 REASONS FOR JUDGMENT This is an application under section 6 of the Federal Proceedings (Costs) Act 1981 on behalf of Gitsadawan Gaillard (hereinafter called "the applicant") for a costs certificate in respect of an appeal to a Full Court of this Court from a decision of the Court constituted by a single judge. The history of the matter is that on 10 January 1983 the Minister for Immigration and Ethnic Affairs, in pursuance of sub-section 7(1) of the Migration Act 1958, purported to cancel the temporary entry permit granted to the applicant on 30 October 1980 and, on the basis that the applicant was a prohibited immigrant, ordered pursuant to section 18 of that Act, that the applicant be deported from Australia. The applicant applied under section 5 of the Administrative Decisions (Judicial Review) Act 1977 to review those decisions of the Minister. On 31 March 1983 the Court, constituted by a single judge, ordered that the decisions be set aside. From that order the Minister appealed. On 29 August 1983 a Full Court of this Court unanimously allowed the appeal with costs, set aside the order of 31 March 1983 and in lieu thereof ordered that the application under the Administrative Decisions (Judicial Review) Act 1977 be dismissed with costs. Counsel for the applicant informed me that the applicant proposed to apply to the High Court for special Leave to appeal from the decision of the Full Court of this Court Section 6 of the Federal Proceedings (Costs) Act 1981 provides in sub-section (1) that, subject to the Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal. The expression "Federal appeal" is defined in sub-section 3(2). It includes an appeal to the Full Court of the Federal Court from a judgment of the Federal Court constituted by a single judge. By virtue of section 12 of the Act, the juris- diction conferred on a court by the Act to grant costs certificates may be exercised by a member of that Court sitting in Chambers. The certificate that may be granted under sub- section 6(1) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of - (a) the costs incurred by the respondent in relation to the appeal; and (b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the res- pondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under % section 7 relates. Section 7 has no relevant application in the present case. There is no doubt that the appeal to the Full Court of this Court succeeded on a question of law as that expression is used in sub-section 6(1) of the Act. The Court is not precluded from granting a certificate by section 14 nor by sub-section 21(1). The statute does not lay down any criteria for the exercise of the discretion which section 6 confers on the Court. The discretion is, therefore, unfettered except in so far as limitations upon it can be said to arise from the general scope and purpose of the legislation to be ascertained upon a consideration of its language. The question of law on which the appeal to the Full Court of this Court succeeded was whether the Minister, in making his decisions, was bound to observe the principles of natural justice. The Full Court held that he was not so bound, differing from the view formed by the learned primary judge. The circumstance that it was the applicant who | asserted before the learned primary judge and before the Full Court that the Minister was so bound is not, of itself, a circumstance warranting the refusal of a certificate. The applicant was granted legal aid in respect of the conduct of the appeal to the Full Court. On one view 4, this circumstance requires that any certificate granted under sub-section 6(1) of the Act be limited to the costs incurred by the Minister in relation to the appeal that have been, or are required to be, paid by the applicant in pursuance of the order of the Full Court. On the other hand the view can be taken that the case ig an appropriate one for the grant of a certificate in the terms set out in paragraphs (a) and (b) of sub-section 6(3), it being a matter for the Attorney-General, in ascertaining what amount by way of costs the applicant has incurred in relation to the appeal, to take into account that the applicant's own costs of that appeal are payable by way of legal aid. On balance I think the Latter is the preferable view. I, therefore, certify in terms of section 6 of the Act that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the applicant in respect of - (a) the costs incurred by the applicant in relation to the appeal to the Full Court of this Court in which judgment was given on 29 August 1983; and . (b) the costs incurred by the appellant, the Minister for Immigration and Ethnic Affairs, in relation to that appeal that have been, or are required to be, paid by the applicant to the said appellant in pursuance of the order of this Court made on 29 August 1983. , I certify that the five (5) preceding pages are a true copy of the Reasons for Judgment of the Honourable Mr. Justice Neaves. Associate Dated: /&E-roO *e3