IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 450 of 1997 BETWEEN: minister for immigration and MULTICULTURAL affairs Applicant AND: sharon ma Respondent JUDGE: WHITLAM J DATE OF ORDER: 14 MAY 1998 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The respondent is to pay the applicant's costs of the proceeding, including any reserved costs and the costs of preparing written submissions on the issue of costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 450 of 1997 BETWEEN: minister for immigration and MULTICULTURAL affairs Applicant AND: sharon ma Respondent JUDGE: WHITLAM J DATE: 14 MAY 1998 PLACE: SYDNEY REASONS FOR JUDGMENT On 31 March 1998 I set aside the decision of the Immigration Review Tribunal ("the Tribunal") upon the application of the Minister. Although she unsuccessfully resisted that relief, the respondent opposes the award of costs against her. The parties have delivered written submissions on the question of costs. The discretion to award costs is conferred by s 43 of the Federal Court of Australia Act 1976 in unqualified terms. Such a provision as to costs is said to "have escaped arterial hardening": Oshlack v Richmond River Council (1998) 72 ALJR 578 per Gaudron and Gummow JJ at 586. Their Honours also said (at 586) that there is no "absolute rule" with respect to the exercise of the power conferred by such a provision that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. The other member of the majority in that case, Kirby J, remarked (at 605-606) of provisions like s 43: "It is because the general purpose of an order for costs in favour of a successful party is to provide compensation in the form of a partial indemnity for the costs incurred that the ordinary principle observed in civil litigation under the "English rule" (as contrasted to the "American rule") is that legal costs will usually be ordered in favour of the successful party. Absent special statutory provisions, Australian law has followed this English rule. But the compensatory principle cannot be treated as an absolute rule. Otherwise, the discretion conferred in unqualified terms would indeed be shackled and confined. To permit this would be incompatible with statutory language expressed in such terms. Therefore, although there are "rules"or ordinary principleswhich will guide the donee of power in the exercise of the discretion, they cannot extinguish the element of discretion. They must not be allowed to harden into rigid or inflexible requirements." (Footnotes omitted.) The respondent acknowledges the usual order that costs follow the event, but submits that there are "special circumstances" in the present case. One of those circumstances is said to be that the Tribunal was the Minister's "delegate" and that, accordingly, he must bear some responsibility for the error of law involved in its decision. This submission completely misconceives the status of members of the Tribunal who are appointed by the Governor-General under s 395 of the Migration Act 1958 ("the Act"). Indeed, the precise statutory context of proceedings under Part 8 of the Act does not, of itself, provide any support for the departure from the usual order as costs. The other circumstances identified by the respondent are that the case contained "issues of significance which are in the public interest", that the statutory provision applied by the Tribunal had not been the subject of prior judicial interpretation, and that such an interpretation would aid the Minister in his future administration of the Act. In Oshlak Gaudron and Gummow JJ considered (at 584) that a category of "public interest litigation" involved a nebulous concept, and Kirby J agreed (at 607) that it was difficult to define with precision what was meant by that expression. However that may be, I am quite unable to discern one feature of the present case that would serve to characterize it as "public interest litigation". The other factors identified by the respondent cannot be relied on to elevate the case into that category. The respondent's motives in contesting the Minister's application would seem, in fact, to be grounded entirely in the interest of her family. That is hardly a public interest. I am prepared to accept that the need for interpretation of legislation and the clarification of the law for its future administration are factors that may be taken into account in deciding whether to award costs. In the present case they cannot, however, count for much. As I pointed out in my earlier reasons for judgment, Moore J had already construed a similar statutory power and the statutory provisions in question have now been amended. In all of the circumstances, these factors are then far outweighed by what Gaudron and Gummow JJ described (at 588) as "the countervailing interest of the successful litigant in obtaining an order for its costs". In my view, this is most definitely not a case for departure from what Kirby J described as "the basic rule" (at 607) or "the general rule" (at 609) based on the compensatory principle. The respondent must pay the applicant's costs of the proceeding, including any reserved costs and the costs of preparing written submissions on the issue of costs. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam Associate: Dated: 14 May 1998 Submissions prepared for the applicant by A L Cavanough QC, instructed by the Australian Government Solicitor, and for the respondent by Baker & Armstrong, solicitors. Date of judgment: 14 May 1998